Closing Argument Requires Reversal

The 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. Whittenburg’s counsel in closing argument to the jury. Counsel spent the bulk of his argument placing before the jury fictitious admissions never uttered by defendants and launching vituperative and unprovoked attacks on defendants and their counsel."

The offending argument, an imaginary letter that the defendant sent to the plaintiff's children, is fully set forth in the opinion.

The Court also said this:

In light of the confluence of these three factors – the extensiveness of the improper remarks, the absence of any meaningful curative action, and the size of the verdict – we find ourselves compelled to conclude that this case must be retried. In so concluding, however, we underscore that our decision is not based on any one of these factors singly, but rather their combination after considering the argument as a whole. We also emphasize that closing argument need not, nor should, be a sterile exercise devoid of passion. Parties are “entitled to have someone speak with eloquence and compassion for their cause.” Draper, 580 F.2d at 95. “Arguments may be forceful, colorful, or dramatic, without constituting reversible error.” Kelly, 84 F.2d at 576. Counsel may “resort to poetry, cite history, fiction, personal experiences, anecdotes, biblical stories, or tell jokes.” Stein, supra at § 1.14 (Scope of permissible argument). But one thing they may not do is use closing argument to introduce massive amounts of putative evidence not in the trial record and then proceed to launch broadside attacks on an opposing party’s right to bring suit or defend itself. While always reluctant to reverse the district court in matters concerning trial misconduct, and to burden both that court and the parties with a new trial, our appellate role – a role that compels us to mark and guard the outer boundaries of acceptable trial conduct – does not permit us to sit this one out.

The case is Whittenburg v. Werner Enterprises, Inc., No. 07-6063, 07-6119 (10th Cir. April 3, 2009).  Read it here.

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"Other Bad Act" Evidence in Medical Malpractice Cases

Sometimes 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?

Nowhere.   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.

This is the first change to the look of the blog in the 52+ months of its life.  It was overdue.

I hope you enjoy the new look and that you will keep visiting.  The daily visits to this site continue to grow and I hope that the information shared here continues to assist you in the representation of your clients.

Study on Impact of Chrysler and GM Bankruptcy on Future Wreck Victims

A 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.

The verdict?  "More than 3,400 U.S. citizens could be killed or injured in the next 12 months by defective cars that are immune from lawsuits."  The estimate is based on the number of claims against the manufacturers between the 3rd quarter of 2003 and the 4th quarter of 2008.

 Read the report here.    

 

ACOG Changes FHR Monitoring Guidelines

From 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). The objective of the guidelines is to reduce the inconsistent use of common terminology and the wide variability that sometimes occurs in FHR interpretations. ACOG's Practice Bulletin, published in the July 2009 issue of Obstetrics & Gynecology, supports the recommendations of the Eunice Kennedy Shriver National Institute of Child and Health Development workshop* on electronic fetal monitoring (EFM) held in April 2008.

...

One notable update in the guidelines is the three-tier classification system for FHR tracings (print-outs of the fetal heart rate). Category 1 FHR tracings are considered normal and no specific action is required. Category 2 tracings are considered indeterminate. This category requires evaluation and surveillance and possibly other tests to ensure fetal well-being. Category 3 tracings are considered abnormal and require prompt evaluation, according to ACOG. An abnormal FHR reading may require providing oxygen to the pregnant woman, changing the woman's position, discontinuing labor stimulation, or treating maternal hypotension, among other things. If the tracings do not return to normal, the fetus should be delivered.

 

Luvera on Direct Examination

Paul 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. That’s how your examination should be framed. Only a small amount of the facts are really significant or persuasive. Concentrate on that twenty percent this is significant and ignore all the rest. Focus your case. Identify the issues that count. Stick with those issues. ignore the rest that is not highly relevant. Use a rifle not a shot gun approach in your examination of witnesses.

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Depositions of Expert Witnesses

What 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

It 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.  Catch a 45-minute long shuttle to a North Carolina resort.  Carry your bag up the steps to a second floor room at 12:30 in the morning.  Get a few hours sleep and go to a windowless ballroom.  Hang around a few hours to give a speech to a room full of people who had a similar ordeal to get there.  All the while knowing that you have to reverse the process the next day in an effort to get home for a meal with the family on Father's Day.

But the drudgery evaporated when I heard Lt. Col. V. Stuart Couch, USMC, speak at Saturday's luncheon of the North Carolina Advocates of Justice Annual Meeting.  Who is Col. Couch?  He was the Gitmo prosecutor  - a career prosecutor - who refused to prosecute a terrorist who had been subjected to torture.  Read more here.

Col.Couch reminded me again why we should to be proud to be  lawyers.  If you ever have the opportunity to hear him speak seize it.  If you ever have an opportunity to shake his hand and thank him for his service to our country and profession, do it.

Covenants Not to Compete

Here 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.

By the way, here is a link to an article in Lawyers Weekiy that tells us that this type of litigation is increasing.

New Business Tort Blog

B2B 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."

The blog is published by the Williams Mullen firm in Virginia.

More On Products Claims Against Chrysler and GM

The 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.

Chrysler has 160 pending cases and GM has about 300.

Bloomberg Article on Medical Liability Reform

"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 $2.3 trillion annually on health care, said Amitabh Chandra, an economist at Harvard University, in a telephone interview. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said in a report last month that liability wasn’t driving up health premiums.

 

President's Speech to the AMA

 

Here 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. That’s a real issue. And while I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.

These changes need to go hand-in-hand with other reforms.
 

NYT Reports President Is Talking About Restricting Med Mal Suits

Here is the article from today's New York Times.

The T. J. Hooper Case

We 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.

An excerpt:

Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure. A whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.

John mentioned this case in a recent comment on a post about the use of IPhones apps in a medical setting.  My post asked whether the use of such apps would become the standard of care.  I don't think T.J. Hooper would apply in a standard-of-care analysis under Tennessee law because we have a statute that tells us where the standard of care of health care providers comes from - and that is from the providers themselves.   

Of course, one could  argue that use of such technology is a duty  issue, not a standard of care issue.  That is, one could argue that, say, an emergency room physician has a legal duty to use this type of technology regardless of whether emergency room physicians actually use it.   The courts can, and have, imposed duties on doctors and others that result in obligations over and above the standard of care.  However, that is a different argument than saying that the courts should rule as a matter of law that the standard of care requires the use of such technology by emergency room physicians.

 

UPDATE on Medical Malpractice Notice and Certificate of Good Faith Statute

SB  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.

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.   The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say.  It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

If notice is given in accordance with the statute, the statute of limitations and repose is extended 120 days.  However, when the complaint is filed, the new law requires that the complaint must be accompanied by a certificate of good faith.

Here is a summary of the bill  prepared by  the General Assembly:


AMENDMENT #1 rewrites the bill. Under present law, any person asserting a potential claim for medical malpractice must give written notice of the claim to each health care provider against whom the claim is being made at least 60 days before the filing of a complaint based upon medical malpractice. A list of all health care providers to whom notice is being given must be attached to the notice. This amendment clarifies that the list must include the name and addresses of such persons and requires that the notice additionally include:

(1) The full name and date of birth of the patient whose treatment is at issue;
(2) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(3) The name and address of the attorney sending the notice, if applicable; and
(4) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The above information must also be provided with the medical malpractice complaint.

This amendment clarifies that the requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider:

(1) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location; or
(2) Mailing of the notice:
(A) To an individual health care provider at both the address listed for the provider on the department of health Web site and the provider's current business address, if different;
(B) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process; and the provider's current business address, if different from that of the agent for service of process.

If the mailings described above in (2)(A) or (2)(B) are returned undelivered from both addresses, then, within five business days after receipt of the second undelivered letter, the notice would be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient. Compliance with the above (2) would be demonstrated by filing a certificate of mailing from the U.S. postal service stamped with the date of mailing, and an affidavit of the party mailing the notice, establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent would be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective. This amendment clarifies that personal service is effective on the date of that service and that service by mail is effective on the first day that the service is made.

Under present law, when the above notice is given, the applicable statutes of limitations and repose are extended for up to 90 days. This amendment increases this extension to up to 120 days and clarifies that the extension would begin from the date of expiration of the statute of limitations and statute of repose applicable to that provider. This amendment clarifies that no more than one extension would apply to a provider.

Under present law, all parties in a medical malpractice action may obtain complete copies of the claimant's medical records from any other party. The receipt of a medical authorization executed by the claimant is considered compliance by the claimant with this provision. This amendment revises this provision to instead clarify that the claimant complies with this requirement by providing the providers with the authorized HIPAA complaint medical authorization required to accompany the notice. This amendment clarifies that a party may obtain the copies from "any other provider receiving notice" instead of from "any other party". This amendment specifies the manner in which a provider may comply with this requirement. This amendment requires that the records received by the parties be treated as confidential and be used only by the parties, their counsel, and their consultants.

Present law requires the plaintiff or plaintiff's counsel to file a certificate of good faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required under present law. This amendment revises this provision to require that the certificate be filed "with the complaint" instead of "within 90 days". This amendment specifies that the complaint will be dismissed, pursuant to present law, if the certificate is not filed with the complaint unless there is a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records or demonstrated extraordinary cause.

This amendment specifies that in the event that notice is successfully given more than once to a provider, the effect of the notice will be determined by the law in effect on the date of the first successful notice.

Punitive Damages Study

The 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. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were surprisingly infrequently sought, with requests found in about 10% of tried cases that plaintiffs won. Punitive damages were awarded in about 30% these trials. Awards were most frequent in cases of intentional tort, with a punitive award rate of over 60%. Greater harm corresponded to a greater probability of an award: the size of the compensatory award was significantly associated with whether punitive damages were awarded, with a rate of approximately 60% for cases with compensatory awards of $1 million or more. Regression models correctly classify about 70% or more of the punitive award request outcomes, Judge-jury differences in the rate of awards exist, with judges awarding punitive damages at a higher rate in personal injury cases and juries awarding them at a higher rate in nonpersonal injury cases. These puzzling adjudicator differences may be a consequence of the routing of different cases to judges and juries.

Thanks for Torts Prof Blog for informing me about the article.

Thinking About Contingent Fees

Maxwell 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. In addition to all the normal costs of a business (rent, staff, etc.), you have to pay your attorneys salaries which are competitive in the market, even against hourly billing firms, and you have to dump loads of money and time into cases for experts, motions, discovery, trials, appeals and negotiations, none of which earn you a dime until the very end.

So I'd say it's no different from Brad's or Fred's ventures: [plaintiff's lawyers] have as strong an incentive against taking frivolous or vexatious claims as they have against investing in unprofitable businesses. The last thing I want to do is spend years of my life and five, six or seven-figures pursuing a case that returns nothing. Like a venture capital fund, our contingent fee law firm turns down far more cases than it accepts.

Of course, Maxwell's thoughts apply to any type of contingent fee litigation.  Every case is an investment, and every good investor engages in due diligence before investing.  Part of that due diligence requires not only analysis of risk but also an understanding of costs.   In other words, you should analyze what it will cost you in time and money if you decide to make an investment in a potential case, and you should also endeavor to understand the likelihood of winning and the likely recovery range.

Any VC fund that does not undertake that analysis quickly goes broke.  Any lawyer asked to do contingent fee work who does not undertake that analysis will do the same.

Please don't give me that worn out "but that is treating law as a business" line.  Let me let you in on a little secret - your landlord, suppliers, and bank think you are running a business.  They want to be paid.  End of story.

I am not saying that you should not do pro bono work.  I am not saying that you should not take cases that are not profitable simply because you believe in the cause or want to help the particular client.  I am saying that you should take those cases consciously, the same way you would make a donation to your church or other organization.   Why?  Because you are making a donation - you are giving away or selling at reduced value something that costs you money to provide.  Once again, that does not mean you should not do it.  It means you should be aware of what you are doing.

Stated differently, it is fine, indeed it is admirable, to  tell yourself "I know that this case is not a money maker for me but I am going to take it because (fill in the blank)."  If you can articulate a reason that is consistent with your values and can afford to make the necessary commitment, go for it.  If not, taking that case will lead to not only financial loss but resentment.  Resentment impacts your productivity and leads to unhappy clients, bar complaints, and more.

Invest in Litigation?

Yep.  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.

This article in the New York Times reports that a unit of Credit Suisse and Juris Capital have a similar business model, as do several unnamed hedge funds.

Juridica has $200 Million available, with an average investment of $7.5 million.

Are you offended?  You shouldn't be.   These companies can level the playing field in commercial litigation.  All too often those with meritorious claims cannot bring those claims because they lack the financial resources to do so.  And saying that such firms encourage frivolous litigation is like saying the presence of liability insurance for defendants encourages frivolous defenses. 

And you wouldn't say that, would you?

Thanks to Litigation and Trial for writing about the New York Times article.

Seminar on New Medical Malpractice Legislation

The 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.  The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar.  Each provision of the legislation will be discussed in detail.  I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

Go here to register for the program.  The program will be held via webcast at a charge of only $45 for TBA members and $65 for non-members.  One hour of CLE credit will be given.

NOTE:  Why am I repeating this post?  Because this legislation represents a substantial change in this area and lawyers need to be aware of it before the effective date.   I am not getting paid to present the program or to market it.  I just do not want lawyers to make decisions on medical malpractice cases without being aware of this new legislation.

New Tennessee Law Blog

There 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.  Good luck.

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SCOTUS Rules That W.Va. Chief Justice Should Have Recused Himself

The 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.

Lawyer Questions Experience of Some Lawyers Who Advertise

Ken 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.

He mentions this appellate court experience of one lawyer who advertises:

Yet another heavy advertiser, who has billboards and bus placards plastered as thick as they can stick all over the metro area, appears in just three reported court decisions, in 1983, 1986 and 1987. But the first of those doesn’t count because he wasn’t representing a client. He was unsuccessfully defending himself in a landlord’s dispossessory action.

Ouch.

We had some similar fireworks in Memphis recently.

 

Proposal to Change Tennessee Ethics Rules

The 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.

Read the a red-line version here.

Read a comparison with the ABA model rule here.

The Tennessee Supreme Court has not yet indicated the length of the comment period on these proposals. 

Seminar on New Medical Malpractice Litigation

The 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.  The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar.  Each provision of the legislation will be discussed in detail.  I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

Go here to register for the program.  The program will be held via webcast at a charge of only $45 for TBA members and $65 for non-members.  One hour of CLE credit will be given.

NOTE:  Why am I repeating this post?  Because this legislation represents a substantial change in this area and lawyers need to be aware of it before the effective date.   I am not getting paid to present the program or to market it.  I just do not want lawyers to make decisions on medical malpractice cases without being aware of this new legislation.

Effect of Tort Reform Legislation

Walter 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".

Here is an excerpt from the executive summary:

Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform's ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).

Thanks to Torts Prof for alerting me about the paper.

Medical Malpractice Filings Dropping

The 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.  During the same seven-month period a year earlier there were 314 filings.

Here is the data for the some of the larger counties in the state:

County                            2007-08                   2008-09

Shelby                                  81                               30

Davidson                             73                               25

Knox                                     32                               12

Hamilton                             10                                  1

Rutherford                           13                                 4

Montgomery                          3                                  0

Washington                         14                                 5

Sullivan                                 20                                 4

Maury                                      4                                  1

Sumner                                  3                                  0

Anderson                               3                                  3

Wilson                                    3                                  3

Dickson                                  3                                  2

 

Thus, in the first seven months of the year, medical malpractice filings are down by about 60%.  There is no reason to believe that there is any less malpractice in Tennessee  than there was last year, so one can readily point to the new law as the reason for the drop in filings.

However, as I said when I reported the data for the first three months after the pre-suit notice and certificate of good faith bill came into effect, we are going to have to see data for at least a full year to get a true feel for the effect of the legislation.  Quite frankly, I would have expected more filings in the first four months of the year.  In the first three months after the statutes were in effect only 28 cases were filed, and this data shows that 83 were filed in the next four months. 

I expect that we will see 140 to 175 cases filed between now and September 30.  At 175, the total filings for the year will be 286.  In the fiscal year ending June 30, 2008, there were 537 medical malpractice filings.  If my guesstimate is correct, filings will be down about 40%.

The defense bar is feeling the pinch.  Several defense lawyers have told me that their pipeline is not being re-filled.  I remember hearing several years ago that it cost an average of $15,000 (or was it $18,000?) to defend a case that was quickly defeated on summary judgment (no in-depth discovery, etc.).  If my memory is correct, and if case filings are down by, say,  200 per year, and the cases not being filed are those type of cases, that is $3,000,000 less paid to defense firms to defend those cases.

Look for defense counsel to defend  cases with even more vigor (if that is possible).

As I mentioned in a post on Thursday, June 4, the General Assembly has a passed a bill modifying the law passed October 1.  The Governor is expected to sign the bill any day now.  This bill eliminates some of the basic unfairness in the pre-suit notice provisions, but may actually further decrease filings because of the new requirement that the certificate of good faith must be filed with the complaint.

To learn more about the legislation click here.

Man Sues Strip Joint

Stripper 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.   Patron claims permanent injury and sues strip joint. 

There is no indication whether the patron is married or, if so, whether his wife filed a loss of consortium claim.

No, Jeff, the WPTV article does not state  the stripper's home number. 

The strip joint is the Cheetah Palm Beach.  This is an adult content site.  I provided the link but did not enter the site.  I promise.

 

Seminar on New Medical Malpractice Legislation

The 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.  The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar.  Each provision of the legislation will be discussed in detail.  I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

Go here to register for the program.  The program will be held via webcast at a charge of only $45 for TBA members and $65 for non-members.  One hour of CLE credit will be given.

New Medical Malpractice Notice and Certificate of Good Faith Bill Passes Senate

SB  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.   The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say.  It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

If notice is given in accordance with the statute, the statute of limitations and repose is extended 120 days.  However, when the complaint is filed, the new law requires that the complaint must be accompanied by a certificate of good faith.

Here is a summary of the bill  prepared by  the General Assembly:


AMENDMENT #1 rewrites the bill. Under present law, any person asserting a potential claim for medical malpractice must give written notice of the claim to each health care provider against whom the claim is being made at least 60 days before the filing of a complaint based upon medical malpractice. A list of all health care providers to whom notice is being given must be attached to the notice. This amendment clarifies that the list must include the name and addresses of such persons and requires that the notice additionally include:

(1) The full name and date of birth of the patient whose treatment is at issue;
(2) The name and address of the claimant authorizing the notice and the relationship to the patient, if the notice is not sent by the patient;
(3) The name and address of the attorney sending the notice, if applicable; and
(4) A HIPAA compliant medical authorization permitting the provider receiving the notice to obtain complete medical records from each other provider being sent a notice.

The above information must also be provided with the medical malpractice complaint.

This amendment clarifies that the requirement of service of written notice prior to suit is deemed satisfied if, within the statutes of limitations and statutes of repose applicable to the provider:

(1) Personal delivery of the notice to the health care provider or an identified individual whose job function includes receptionist for deliveries to the provider or for arrival of the provider's patients at the provider's current practice location; or
(2) Mailing of the notice:
(A) To an individual health care provider at both the address listed for the provider on the department of health Web site and the provider's current business address, if different;
(B) To a health care provider that is a corporation or other business entity at both the address for the agent for service of process; and the provider's current business address, if different from that of the agent for service of process.

If the mailings described above in (2)(A) or (2)(B) are returned undelivered from both addresses, then, within five business days after receipt of the second undelivered letter, the notice would be mailed in the specified manner to the provider's office or business address at the location where the provider last provided a medical service to the patient. Compliance with the above (2) would be demonstrated by filing a certificate of mailing from the U.S. postal service stamped with the date of mailing, and an affidavit of the party mailing the notice, establishing that the specified notice was timely mailed by certified mail, return receipt requested. A copy of the notice sent would be attached to the affidavit. It is not necessary that the addressee of the notice sign or return the return receipt card that accompanies a letter sent by certified mail for service to be effective. This amendment clarifies that personal service is effective on the date of that service and that service by mail is effective on the first day that the service is made.

Under present law, when the above notice is given, the applicable statutes of limitations and repose are extended for up to 90 days. This amendment increases this extension to up to 120 days and clarifies that the extension would begin from the date of expiration of the statute of limitations and statute of repose applicable to that provider. This amendment clarifies that no more than one extension would apply to a provider.

Under present law, all parties in a medical malpractice action may obtain complete copies of the claimant's medical records from any other party. The receipt of a medical authorization executed by the claimant is considered compliance by the claimant with this provision. This amendment revises this provision to instead clarify that the claimant complies with this requirement by providing the providers with the authorized HIPAA complaint medical authorization required to accompany the notice. This amendment clarifies that a party may obtain the copies from "any other provider receiving notice" instead of from "any other party". This amendment specifies the manner in which a provider may comply with this requirement. This amendment requires that the records received by the parties be treated as confidential and be used only by the parties, their counsel, and their consultants.

Present law requires the plaintiff or plaintiff's counsel to file a certificate of good faith within 90 days after filing a complaint in any medical malpractice action in which expert testimony is required under present law. This amendment revises this provision to require that the certificate be filed "with the complaint" instead of "within 90 days". This amendment specifies that the complaint will be dismissed, pursuant to present law, if the certificate is not filed with the complaint unless there is a showing that the failure was due to the failure of the provider to timely provide copies of the claimant's records or demonstrated extraordinary cause.

This amendment specifies that in the event that notice is successfully given more than once to a provider, the effect of the notice will be determined by the law in effect on the date of the first successful notice.

 

More on GM and Chrysler Products Claims

Here 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.

Of course, to the extent that the claims are covered by insurance, and the insurance company is still viable, the money should be paid.  The problem, of course, is that the self-insured retention for these companies is quite high (I don't know how much) and thus those able to prove their claims will be in the unsecured creditor pool for the retention amount and can only look to the insurance company for excess amounts.

For my other posts on this subject look here, here, and here.

As discussed in a previous post,  the other avenue for monies for those with existing claims not reduced to judgment are claims against dealers, component part manufacturers, etc.  Who can be held liable is very much subject to the facts and applicable state law.

How much are the unsecured claims?  How much money will be left to divide among unsecured claimants?  It will take some time to determine the answers to those questions.  I have seen the Chrysler tort claims valued at several different numbers hundreds of millions of dollars apart.  It is easy to value a claim if it is reduced to judgment.  If the claim is a pending claim then the value can only be estimated until it is reduced to judgment or until an agreement is reached on how to put a dollar value on the claim. 

But that are many unsecured claims.  Here is a list offered by one law firm of the top 50 unsecured creditors in the Chrysler action.  Leading the way is Ohio Module Mfg.Co, LLC with a stated claim of over $70,000,000.  Number 50 on the list is purportedly owed $5,000,000.    I did not take the time to add them up but the numbers appear to total over $700,000,000.   One article suggests that the total trade debt is $1.5 Billion.

SCOTUS Reverses Tennessee FELA Case

The 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. He sought pain and suffering damages for fear of developing lung cancer.

The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable.  The Tennessee Court of Appeals upheld the trial judge's refusal to give such an instruction.  The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer."  (Interesting rationale, isn't it?  There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages.  The worse the product, the higher the standard, I guess.)

Doesn't the gatekeeper function of the court in evaluating expert testimony already address this issue?  Not according to the Supreme Court;

It is no answer that, as the Tennessee Court of Appeals stated, courts can apply the Ayers standard when ruling on sufficiency-of-the-evidence challenges. To be sure, [Norfolk & Western R. Co. v.] Ayers recognized that a “review of the evidence on damages for sufficiency” is another of the “verdict control devices” available to courts when plaintiffs seek fear-of cancer damages. Id., at 159, n. 19. But a determination that there is sufficient evidence to send a claim to a jury is not the same as a determination that a plaintiff has met the burden of proof and should succeed on a claim outright. Put another way, a properly instructed jury could find that a plaintiff’s fear is not “genuine and serious” even when there is legally sufficient evidence for the jury to rule for the plaintiff on the issue. That is why Ayers recognized that sufficiency reviews and jury instructions are important and separate protections against imposing unbounded liability on asbestos defendants in fear-of cancer claims.

Justice Stevens' dissent points out that  " it is hard to believe the jury would have awarded any damages for Hensley’s fear of cancer if it did not believe that fear to be genuine and serious."

The case is CSX Transportation, Inc. v. Hensley, 556 U.S. ___ ( June 1, 2009).  Read it here.  The dollar amount of the jury verdict that was reversed?  $5,000,000, plus several years of post-judgment interest.

 

Victims' Lawyers (and Others) Discuss GM and Chrysler Products Claims

Here 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. Anyone filing such lawsuits will be able to recover only from the limited assets of the old company."

Finally, here is the point of view of a claimant as published in the Daily News.

Chrysler Sale Bars Future Tort Claims

I 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.

Category (3) consists of tort and consumer objections. Those objections relating to  lemon law and warranty claims have been resolved by the modification of relevant language in the Fale order. An objection (ECF Docket No. 1231) was raised regarding an environmental claim, but the property to which the claim related is no longer owned by the Debtors and the objection is therefore overruled. Various objections were raised related to property damage claims and personal injury and wrongful death claims, including those which have not yet occurred. Some of these objectors argue that their claims are not “interests in property” such that the purchased assets can be sold free and clear of them. However, the leading case on this issue, In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003) (“TWA”), makes clear that such tort claims are interests in property such that they are extinguished by a free and clear sale under section 363(f)(5) and are therefore extinguished by the Sale Transaction. See id. at 289, 293. The Court follows TWA and overrules the objections premised on this argument. Even so, in personam claims, including any potential state successor or transferee liability claims against
New Chrysler, as well as in rem interests, are encompassed by section 363(f) and are therefore extinguished by the Sale Transaction. See, e.g., In re White Motor Credit Corp., 75 B.R. 944, 949 (Bankr. N.D. Ohio 1987); In re All Am. Of Ashburn, Inc., 56 B.R. 186, 190 (Bankr. N.D. Ga. 1986).

The Court also overrules the objections premised on this argument. Additionally, objections in this category touching upon notice and due process issues, particularly with respect to potential future tort claimants, are overruled as to those issues because, as discussed elsewhere in this Opinion, notice of the proposed sale was published in newspapers with very wide circulation. The Supreme Court has held that publication of notice in such newspapers provides sufficient notice to claimants “whose interests or whereabouts could not with due diligence be ascertained.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950). Accordingly, as demonstrated by the objections themselves, the interests of tort
claimants, including potential future tort claimants, have been presented to the Court, and the objections raised by or on behalf of such claimants are overruled.
 

Other objections in this category are premised on the argument that a free and clear sale would be fundamentally unfair, inequitable, or in bad faith. The policy underlying section 363(f) is to allow a purchaser to assume only the liabilities that promote its commercial interests. See, e.g., In re New England Fish Co., 19 B.R. 323, 328-29 (Bankr. W.D. Wash. 1982); White Motor Credit, 75 B.R. at 951. Accordingly, objections premised on this argument are overruled. An objection in this category raised the Takings Clause of the Fifth Amendment, but this objection is overruled because the objector holds an unsecured claim, rather than a lien in some collateral that is property of the estate, which is a necessary prerequisite to a Fifth Amendment Takings Clause claim in the bankruptcy context. See U.S. v. Security Industrial Bank, 459 U.S. 70 (1982).  The same objection also raised the issue of the break-up fee being excessive, but this objection is overruled as untimely because that fee was approved in the Bidding Procedures Order and is not implicated since the assets are being sold to the original bidder. Another objection related to an asbestos claim raised both the failure to comply with section 524(g) and that the Sale Transaction improperly provides for the release of third parties, but this objection is overruled as to both issues because section 524(g) is inapplicable to a free and clear sale under section 363 and the Sale Transaction does not contain releases of third parties. Such claims can still be asserted against the Debtors’ estate. Other objections in this category which contend that the Sale Transaction is a sub rosa plan are overruled as to that issue but are addressed by the relevant sections of this Opinion.

What is unclear to me under this Order does, if anything to existing claims and judgments.  I will try to determine what is going there and let you know.

I am confident  that an appeal will be filed.

This decision, if it stands, will have an impact on component part manufacturers.  To the extent that a part fails you will see plaintiffs going directly to the component part manufacturer and not to Chrysler - the entity that injected the product into the stream of commerce.

But design claims?  Unless Chrysler out-sourced its design work, those claims will be gone unless state law permits a claim against the dealer.  Tennessee permits products liability claims against the retailer of a new product  if the manufacturer of the product is insolvent.  Of course, a lot of dealers are going out of business, but many of them have liability insurance that will provide some amount of monies who those who can prove that the vehicle was sold in a defective or unreasonably dangerous condition.

Here is my prior post on the Chrysler bankruptcy filing.

Manual for Complex Litigation

At 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.