Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

The 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.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

The damage award?  $115,000 for past and future medical expenses and $1.15 million in noneconomic damages, including $900,000 for her pain and suffering.   The damage cap would have the effect of reducing the award by over 50%, down  to $465,000.

The press release has an extended summary of the trial judge's ruling that struck down the caps as unconstitutional on three different grounds.  Click on "Continue reading" to see the summary of Judge Diane Bressen's order as set out in the press release.

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I 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.  He limits his cases to representing people who have been bitten by dogs and "accept [s] only cases where a person has been bitten in the face, or has become disabled -- or where a person has been killed."

Kenneth shares lots of information for victims of dog bites, down owners, parents, journalists and other lawyers.  He also sells what appears to be a very comprehensive form book.  He also sells videos and books for lawyers.  For those who have relatively minor cases, Kenneth sells forms to aid the injured party in resolving his own case.  

And, of course, he has a blog.

For those of you who have a dog bite case in Tennessee, remember that we had a major statutory change in the area in 2007.  The new statute is codified at T.C.A. Sec. 44-8-413:

(a)(1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

(2) Such a person may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog's owner knew or should have known of the dog's dangerous propensities.

(b) The provisions of subsection (a) shall not be construed to impose liability upon the owner of the dog if:

(1) The dog is a police or military dog, the injury occurred during the course of the dog's official duties and the person injured was a party to, a participant in or suspected of being a party to or participant in the act or conduct that prompted the police or military to utilize the services of the dog;

(2) The injured person was trespassing upon the private, nonresidential property of the dog's owner;

(3) The injury occurred while the dog was protecting the dog's owner or other innocent party from attack by the injured person or a dog owned by the injured person;

(4) The injury occurred while the dog was securely confined in a kennel, crate or other enclosure; or

(5) The injury occurred as a result of the injured person enticing, disturbing, alarming, harassing, or otherwise provoking the dog.

(c)(1) If a dog causes damage to a person while the person is on residential, farm or other noncommercial property, and the dog's owner is the owner of the property, or is on such property by permission of the owner or as a lawful tenant or lessee, in any civil action based upon such damages brought against the owner of the dog, the claimant shall be required to establish that the dog's owner knew or should have known of the dog's dangerous propensities.

(2) The element of proof required by subsection (1) shall be in addition to any other elements the claimant may be required to prove in order to establish a claim under the prevailing Tennessee law of premises liability or comparative fault.

(d) The statute of limitations for an action brought pursuant to this section shall be the same as provided in § 28-3-104, for personal injury actions.

(e) As used in this section: (1) "Owner" means a person who, at the time of the damage caused to another, regularly harbors, keeps or exercises control over the dog, but does not include a person who, at the time of the damage, is temporarily harboring, keeping or exercising control over the dog.

(2) "Running at large" means a dog goes uncontrolled by the dog's owner upon the premises of another without the consent of the owner of such premises, or other person authorized to give consent, or goes uncontrolled by the owner upon a highway, public road, street or any other place open to the public generally.

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A 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.

Here is the wording of the assignment of error that  the court has agreed to review:

The trial court erred in granting Norfolk’s motions in limine to exclude the testimony of Drs. Zelen and Steffan based upon its finding that they were not qualified, as podiatrists or otherwise, to render expert opinions as to the causation of plaintiff’s physical injuries, and in subsequently granting Norfolk’s summary judgment motion based upon plaintiff’s lack of causation testimony.

In Tennessee, a podiatrist

means one who examines, diagnoses, or treats medically, mechanically, or surgically, the ailments of the human foot, ankle and soft tissue structures extending no higher than the distal tibial metaphyseal flair, including the use and prescribing of drugs and medications, but excluding the direct applications of general anesthesia by a podiatrist and the amputation of the foot. A podiatrist may perform Achilles tendon repair, subject to the provisions of subsection (b), but may not perform surgery on Pilon fractures or tibial fractures that do not enter the ankle joint. T.C.A. Sec. 63-3-101.

Here are the statutory qualifications for  podiatrists in Tennessee:

 No person shall be entitled to take any examination for a license unless that person furnishes the board with satisfactory proof that that person is eighteen (18) years of age or over, and of good moral character, and that that person has received a license or certificate of graduation from a legally incorporated regularly established and recognized college of podiatry conferring the degree of D.P.M. (Doctor of Podiatric Medicine) and accredited by the Council of Education and the American Podiatry Association.  ...
T.C.A. Sec. 63-3-110.

Podatrists can prescribe drugs.   T.C.A. Sec. 63-3-127.   They are eligible for privileges in hospitals and ambulatory surgery centers and can operate in those facilities.  T.C.A. Sec. 63-1-101 (b).

A podiatrist was permitted to testify on the issue of impairment in several worker's compensation cases, including Simpson v. Calsonic Kansei North America, 2007 WL 439032 (Tenn. Work. Comp. Panel. Feb. 12, 2007), Trasher v. Carrier Corp.,  2002 WL 31558109 (Tenn. Work. Comp. Panel. Nov. 22, 2002), and Chapman v. E-Z Serve Petroleum Marketing Co., 2000 WL 527860 (Tenn. Work Comp. Panel May 02, 2000), although the opinions do not indicate that the defendant challenged the podiatrist's ability to testify.  A podiatrist was also permitted to testify on causation in the FELA case of  Biddle v. Norfolk Southern Railway Co.  1997 WL 716879 (Tenn. Ct. App. Nov. 19, 1997), although once again it does not appear that the defendant challenged the ability of the podiatrist to testify

If a podiatrist is testifying about what he or she  is licensed to do and actually does, why shouldn't he or she permitted to testify?  Shouldn't the fact that podiatry requires less overall schooling (as compared with a medical doctor) go to weight and not admissibility?

Thanks to the Torts Prof Blog  and  The VLW Blog for informing me about this case.

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Economists 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. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

The factors taken into account in determining work life expectancy are age, gender, education and level of work disability.

To learn more visit the Vocational Econometrics website.

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Here 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.

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I 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.

The plaintiff was a financial planner who took off work to care for his injured wife.  He sought over $1,000,000 in loss of income.   A 5-2 majority of the court rejected his claim for this element of loss, holding instead that he could only recover the economic value of the care as if it had been provided by a non-family member.

To be more precise:  "part of the injured spouse’s damages against a defendant can include the fair market value of the home health care provided by the uninjured spouse. Damages are measured not by the lost income of the supporting spouse but by the market value of the services he or she renders."

Because the plaintiffs did not introduce any evidence of the market value of the wages the claim was dismissed.

This decision hurts this plaintiff and other high-income spouses who decide to care for a loved one rather than bring a stranger into the home.  However, the decision permits low income people to seek damages at the market rate, and home health care workers hired through an agency are very expensive.  If the "market value of the services" is the test, evidence that the spouse would have only made a fraction of the dollars he or she seeks for providing the care if he or she had been at her regular job should not be admissible. 

The case is Hutchings v. Childress, Slip Opinion No.  2008-Ohio-4568 (Ohio Sept. 17, 2008).  Read the opinion here.                           

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Smart 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.

Defense lawyers:  read it and learn.  Plaintiff's lawyers: read it and learn even more.

Note:  this is post number 1250 in the 43 month life of this blog.   

I need some other hobby.

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We 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.

 The Medicare, Medicaid and SCHIP Extension Act of 2007, §111, which requires liability (including self-insured), no-fault and workers' comp insurers to report certain information about injured parties who are entitled to Medicare.  New rules have been proposed on the subject and will go into effect on July 1, 2009.  You can review and comment on the new rules here.   The data required by the new rules will give the government a significant amount of information about PI and WD claimants and the concern is that the data will be used to insist that case proceeds be used to pay future bills.

I will follow the developments in this area and keep you advised.

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One 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. James Butcher, PhD, a senior author of the MMPI-2 and a professor at University of Minnesota, said that the fake bad scale does not meet the standards set by other MMPI-2 scales and "greatly overestimates" malingering."

Read the article here.

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The jury found that the defendant was negligent and that the negligence caused an herniated disk.  The disk problem was surgically repaired.  The plaintiff used a walker for nine months and now uses a cane. Amount of damages for pain and suffering?  Zero.

Motion for new trial?  Denied.

The California Court of Appeals reversed, holding that the failure to award damages for pain and suffering meant that the verdict was inadequate as a matter of law.

The case is Dodson v. J. Pacific, Inc., B186416 ( Cal. Ct. App. Div. 8  Aug. 28, 2007).  Read it here.

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The Wisconsin Supreme Court has ruled that a plaintiff is entitled to prove the full amount of medical charges, despite the fact that plaintiff's insurer actually paid a less amount.  The lesser amount cannot be used to prove that it is the "reasonable" value of the services.

This is how the Court expressed its holding:  " the collateral source rule prohibits parties in a personal injury action from introducing evidence of the amount actually paid by the injured person's health insurance company, a collateral source, for medical treatment rendered to prove the reasonable value of the medical treatment."

The majority opinion is 37-pages long, but here is a brief statement of the reason for the Court's holding:  "Although an injured person may experience double recovery when the collateral source rule is applied, one recovery from the collateral source and a second recovery from the tortfeasor, the purpose of the collateral source rule is not to provide the injured person with a windfall, but rather to prevent the tortfeasor from escaping liability because a collateral source has compensated the injured person. The injured person, not the tortfeasor, benefits from the collateral source."  [Footnotes omitted.]

If you want to read that opinion and the 15-page dissent in Leitinger v. DBart, Inc., 2005AP2030 (WI. S. Ct. Jul 3, 2007)  click here.

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This report published by Rueters says that if "the typical stay-at-home mother in the United States were paid for her work as a housekeeper, cook and psychologist among other roles, she would earn $138,095 a year."

Is this data that can be reasonably relied upon by an economist in a death or personal injury case?

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The Kentucky Supreme Court has ruled that a "plaintiff need only prove with reasonable probability  that the injury is permanent in order to obtain an instruction on permanent impairment of earning power."

In Reece v. Nationwide Mutual Insurance Company,  2005-SC-000079-DG (Ken. S. C. March 22, 2007) Reece was hurt in an automobile accident.  Two doctors testified that she suffered a permanent injury in the incident.  The issue before the court was

"whether the evidence submitted by Reece in this case was sufficient to warrant an instruction on permanent impairment of earning power, or whether Reece was required to present specific evidence, presumably in the form of an expert, of how her earning power was permanently impaired by the injury. Reece argues that no specific evidence of permanent impairment of earning power is required, only proof that the injury is permanent which she presented through the testimony of Dr. Thurman and Dr. Raque. Nationwide contends that the Court of Appeals correctly set out the standard which would require specific evidence of permanent impairment of earning power in the present case . We hold that evidence of permanent injury alone is sufficient for an instruction on permanent impairment of earning power, and that the jury can through their common knowledge and experience make the determination if there has been a permanent impairment of earning power, the extent of such impairment, and the amount of damages for such impairment."

Read the decision here.

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The Ohio Supreme Court has ruled that  "both an original medical bill rendered and the amount accepted as full payment are admissible to prove the reasonableness and necessity of  charges rendered for medical and hospital care."

The Court went on to say that "[t]he jury may decide that the reasonable value of medical care is  the amount originally billed, the amount the medical provider accepted as payment, or some amount in between. Any difference between the original amount of a medical bill and the amount accepted as the bill’s full payment is not a “benefit” under the collateral-source rule because it is not a payment, but both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses."

It should be noted that Ohio has a statute that modifies the traditional collateral source rule.

The case is Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362 (Dec. 20, 2006).  Read the opinion here.

I have written posts on this subject before.  For example, see this post and this post.

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The Tennessee Court of Appeals has ruled that a minor can sue to recover medical expenses paid to treat injuries received by the minor as a result of the negligence of another.  Although most of us (at least those of us who represent plaintiffs) have thought this was probably the law, it is nice to see an opinion from this century addressing the issue directly.

Here is the entire section of the opinion on the subject that addresses this important issue:

"As a final matter, Defendant contends that the trial court erred in admitting evidence of
Plaintiff’s pre-majority medical expenses since a minor does not having standing to assert a claim for expenses incurred on his behalf and Mrs. Craig was not a party to the suit. Tennessee Code Annotated section 20-1-105 provides that a claim for medical expenses incurred by a minor during his or her minority does not belong to the minor, but rather to the minor’s parents. See also Burke v. Ellis, 58 S.W. 855, 857 (Tenn.1900). However, in Smith v. King, No. Civ.A. 958, 1984 WL  586817, at *2 (Tenn.Ct.App. Sept. 21, 1984), the court addressed a substantially similar issue and determined that a minor plaintiff may maintain his or her own cause of action for medical expenses and include the amount of medical expenses incurred on behalf of the minor as an element of his or her damages.

In Smith, Barbara Ellen Smith, a minor, by and through her parents as next friends, sued
defendant for personal injuries received when the school bus in which she was a passenger was
struck by defendant’s vehicle. Smith, 1984 WL 586817, at *1. Because the suit was filed more than a year after the accident, the parent’s cause of action for pre-majority medical expenses was barred by the statute of limitations. Smith, 1984 WL 586817, at *1. Instead of precluding any recovery for the minor’s pre-majority medical expenses, the court adopted the waiver rule and held that “a child under circumstances where the parent has acted as next friend may maintain an action for his medical expenses provided that [the parent] has paid for them...or is legally obligated to pay them.” Smith, 1984 WL 586817, at *2. The court reasoned that pursuant to the waiver rule, “the parent by bringing the suit on behalf of the minor has waived any claim that he might have” thereby eliminating the concern of double recoveries for pre-majority medical expenses. Smith, 1984 WL 586817, at *2.

Applying the holding in Smith, we find that Plaintiff could properly maintain his own action for pre-majority medical expenses incurred or likely to be incurred by Mrs. Craig on his behalf and
thus the trial court did not err in admitting evidence of Plaintiff’s pre-majority medical expenses. Since the jury awarded Plaintiff $300,000.00 in pre-majority economic damages, Mrs. Craig i precluded from any further individual recovery under the waiver rule enunciated in Smith."

The case is Palanki v. Vanderbilt University , No. M2005-02220-COA-R3-CV (Tenn. Ct. App. Nov 13, 2006).  Read it here.

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The Tennessee Supreme Court issued an opinion yesterday in the Abbott v. Blount County, Tennessee case.

In an opinion by now retired Justice Al Birch, the Court made it crystal clear that an insurance company could not require a plaintiff to get approval of plaintiff's health insurance company before settling a personal injury suit.  The Court said that it is  "clear that the made-whole doctrine applies regardless of the language found in the insurance contract. Contract terms that require the consent of the insurer would allow the insurer to withhold consent from any settlement that does not make the insured whole and thereby compel the insured to seek a larger award at trial. We disapproved of allowing insurers to contract away the right to be made whole in York, and we do so again today. Finally, we note that the lack of an insurer’s consent does not make an insured more likely to receive a double recovery."

The Court said that there was a genuine issue of material fact about whether the plaintiffs were made whole.

The Court also said that "if Blount County had knowledge of the Abbotts’ lawsuit and settlement negotiations but did not intervene or warn the insured that Blount County’s subrogation rights could affect the Abbotts’ recovery, then Blount County will be deemed to have waived those rights. However, the facts concerning whether Blount County had notice of the lawsuit and settlement negotiations are disputed, and, thus, we affirm the Court of Appeals’ holding that summary judgment as to this issue is inappropriate."

The cite to the Abbott case is No. E2004-00637-SC-R11-CV ; it was filed on November 7, 2006.  Read the opinion here.

Two points.  First, note that this case is governed by state law, not ERISA.  ERISA is a much different breed of cat.

Second, this opinion points out the need for the plaintiff to prove that he or she was not made whole.  It is not enough to say "look how bad I am hurt" or "See how much my medical bills are."  The plaintiff must introduce evidence from which the value of the case can be determined.  Evidence.  Real evidence.  Just like you use in court.  Oh, that's right, we are talking about court. 

For example, in our recent hearing on this subject, the insurer stipulated to the medical bills and records.  The insurer also stipulated that the judge could draw reasonable conclusions from the records about the permanency of the injuries (to avoid the cost of taking medical depositions).  We had a nurse testify about the medical treatment of each client.  We used illustrations - no reason a nurse cannot testify as to the accuracy of those.  We had our clients testify.  The total testimony was under 90 minutes.

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Damage paid for personal injury claims are not taxable, right?  Wrong.  Damages paid for personal injury claims "“on account of personal physical  injuries or physical sickness” are not taxable.  26 U.S.C. § 104(a)(2).   Damages paid for purely emotional injuries are taxable, at least in the opinion of the IRS. 

Now, along comes Murphy v. Internal Revenue Service,  No. 05-5139 (D.C. Cir.  August 22, 2006).  Murphy received "damages for emotional distress and loss of reputation she was awarded in  an adminstrative action she brought against her former employer."  She was asked to, and did, pay taxes on the award, and then sued to get her tax payments back.  She tried to argue that the payments fell within the exclusion of § 104(a)(2), but that failed.  However, the Court held that  "§ 104(a)(2) is unconstitutional as  applied to her award because compensation for a non-physical  personal injury is not income under the Sixteenth Amendment  if, as here, it is unrelated to lost wages or earnings."

The Court said "it is clear from the record that the damages were awarded to make Murphy emotionally and  reputationally “whole” and not to compensate her for lost wages  or taxable earnings of any kind. The emotional well-being and  good reputation she enjoyed before they were diminished by her  former employer were not taxable as income. Under this  analysis, therefore, the compensation she received in lieu of  what she lost cannot be considered income and, hence, it would  appear the Sixteenth Amendment does not empower the  Congress to tax her award."  It went on to say that "every indication is that damages received solely in  compensation for a personal injury are not income within the  meaning of that term in the Sixteenth Amendment. First, as  compensation for the loss of a personal attribute, such as wellbeing  or a good reputation, the damages are not received in lieu  of income. Second, the framers of the Sixteenth Amendment  would not have understood compensation for a personal injury --  including a nonphysical injury -- to be income. Therefore, we  hold § 104(a)(2) unconstitutional insofar as it permits the  taxation of an award of damages for mental distress and loss of  reputation."

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You knew it would happen sooner or later.  A same-sex couple in Connecticut has filed a loss of consortium claim in a medical malpractice lawsuit. 

Connecticut has a civil union statute that gives same-sex couples the same rights as heterosexual married couples.  Given the state of the law in Tennessee it is my opinion that such a claim could not be filed here.

Read more here.

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The SCOTUS has decided the Sereboff v. Mid Atlantic Medical Services, Inc. case - the long awaited case that was to tell us about an ERISA plan's right to seek reimbursement of medical payments from a tort recovery.

The Court held that the payments were recoverable.

The case was decided on May 15, 2006. The case number is 05-260.

Read the opinion here.

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The USSC has ruled that a state may not enforce its Medicaid lien out of money paid to the plaintiff for losses other than medical expenses. The case is Arkansas Department of Health and Human Services v. Ahlborn, No. 04-1506 (decided May 1, 2006).

Arkansas had a statute that permitted it to have its Medicaid subrogation interest paid out of a tort recovery by the plaintiff. Arkansas took the position that it was paid "off the top," without regard to whether the money was paid for medical bills or some other compensable loss. That statute was held to be in violation of federal law.

The USSC addressed the issue of the parties potentially setting up an artifical allocation of settlement monies for medical expenses fopr the purposes of defeating Medicaid subrogation. The Court said "[e]ven in the absence of such a post-settlement agreement [about what portion of the settlement proceeds should be allocated to medical expenses], though, the risk that parties to a tort suit will allocate away the State's interest can be avoided either by obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others."

What does this mean? It means that the Tennessee statute which is often interpretated to give "first dollar" rights to Tennessee is also overbroad. From a practical matter, these matters are often worked out and should continue to be. This case gives the plaintiff a strong tool to help resolve the issue in the event he or she confronts a "subrogation specialist" with a bad attitude.

Read the decision here.

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The House of Representatives is trying to limit the right of tort victims again.

This time, the effort is to give even greater power to holders of ERISA subrogation interests.

The House has passed a pension bill (H.R. 2830) that included this language:

"(a) In General- Section 502(a) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1132(a)) is amended by adding, after and below paragraph (9), the following new sentence:
`Actions described under paragraph (3) include an action by a fiduciary for recovery of amounts on behalf of the plan enforcing terms of the plan that provide a right of recovery by reimbursement or subrogation with respect to benefits provided to or for a participant or beneficiary.'"

The Senate-version of a pension reform bill, S.B. 1763, has no such provision.

The intent of the language in the House bill is to increase the power of an ERISA-qualified plan to seek subrogation or reimbursement under the plan. Several federal circuit appellate courts have limited the rights of plans under current law, and the United States Supreme Court is considering the issue right now.

A conference committee will be appointed to address the differences in the two bills. I will let you know who is on that committee when it is appointed.

ATLA is compiling compelling stories about how your clients' rights would have been affected if the proposed provision is adopted in the conference. Please include your client's name, state, a short summary of the facts, the amount of damages awarded, and whether the case was appealed or is pending on appeal. Please send a write-up of your case to Kathryn Clark at kathryn.clark@atlahq.org.

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This is not a new opinion, but I came across it recently and thought it was worthy of mentioning here. It sets forth the elements that must be proved in a medical monitoring case under West Virginia law. The plaintiff must prove that:

"(1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible."

Remember that the Sixth Circuit Court of Appeals recently held that Tennessee would recognize a cause of action of medical monitoring. Read my post about the case here.

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A new opinion by the Western Section Court of Appeals in a personal injury case has me scratching my head.

The male plaintiff King was hurt in a car wreck. He claimed damages for loss of earning capacity. He was self-employed in the limestone business and his earnings history in the business was a real issue. The jury awarded $1,050,000 in damages on this element. The trial judge approved the award. The Court of Appeals reversed, saying that the amount was speculative.

Specifically, the Court said "King had no contracts for the sale of limestone. Additionally, King's main customer bought from other sellers of limestone. Given the track record of King's business and the uncertainty of sales of limestone, any showing of lost business profits would be speculative and not admissible to show lost earning capacity." (Footnote omitted.)

Ok. This may be the correct result. But clearly the man had some earning capacity. There was also evidence that he had carpentry skills. The jury believed the plaintiff. So did the trial judge. The issue is whether there is any material evidence to support the verdict.

It does not surprise me that there was no specific proof on future sales of limestone or that the plaintiff had no contracts on the sale of limestone. Are long-term contracts common in the limestone business?

Long-term contracts don't exist in the professional world. I do not know if I will ever get another client. But the fact that I have managed to make a living for over 24 years and now have enough work to keep three other lawyers and seven other people busy should mean something. If I am injured will my loss of future earnings be speculative? Why not? How can I prove that I will ever get another client? How can I prove that my existing clients won't fire me tomorrow? How can I prove that the Legislature is not going to eliminate the rights of my future clients and therefore run me out of my practice?

This man apparently had some earnings problems in his business. He had no long-term contracts. His customers used other suppliers. Can't a jury weigh that all out and determine whether or not the man probably suffered a loss of earning capacity because of his injuries and if so in what amount?

The Court of Appeals threw out the testimony of the plaintiff's loss of earnings expert, saying it was speculative. I can't tell from the opinion what the man said so it is a difficult to know whether his testimony was appropriate or not. I do know this: the future is always uncertain. It is entirely possible that you will die before getting to the end of this post. Not likely, but possible.

You cannot take "uncertainity" out of calculations of future damages. Period. It will always be there. Joe Six-Pack working in a factory has no way of knowing that his job won't be shipped to China next month. In an employment at will state no one knows whether he or she will have a job tomorrow. And while I agree that proving damages for a self-employed person is more difficult than it is for a salaried or hourly worker the law should not erect unrealistic barriers to proof of damages for the self-employed. Uncertainity of future events is part of life, and it is unfair for courts to require unreasonable certainity in an uncertain world.

Twelve citizens of Maury County listened to the evidence and found enough certainity. An experienced trial judge affirmed the verdict. Apparently the 13 of them did not think the testimony on this issue was speculative and you can be assured that the defendant attempted to prove and argued that it was.

By the way, how old was the plaintiff? What were his prior earnings? Wasn't it possible to remit the verdict rather than order a new trial on this element? The Court of Appeals said "no - to remit the verdict would destroy it." Perhaps, but since the opinion does not give any information about the man's earnings or his age future litigants and judges have no guidance from this opinion on how to evaluate motions to remit in the future.

The Court also reversed the trial court-approved future medical expense award. Why? Read this: "In each of their testimonies, each doctor stated to a reasonable degree of medical certainty that King would require medical treatment for the rest of his life because of the injuries he incurred from the accident. Further, each doctor stated that the previous year's medical expenses would be a reasonable estimate of the costs King would incur per year as a result of the accident. In addition, Appellees presented all of King's medical bills incurred as a result of the accident. The parties have also stipulated as to the amount of medication expense King will incur per year in addition to his medical treatment expenses. Taking this evidence as true and as a whole, we cannot say that this evidence can support the full extent of the jury's award for future medical expenses."

What? The award for future medical expenses was $225,000. The past medical expenses were $75,000+. The opinion does not tell us what amount was spent in the previous year; maybe that number multiplied by plaintiff's life expectancy (also not stated) does not approximate $225,000. But what else is a plaintiff supposed to do? Assuming the numbers work out (and remember that the jury is charged about inflation and present value) hasn't the plaintiff met his burden of proof on this issue? And it the numbers don't add up why not just state what they are?

The biggest problem I have with this opinion is that it will be used by lawyers across the State to attempt to exclude loss of earnings experts and future medical expense experts and the lack of facts in the opinion make it difficult to understand why the Court did what it did. Maybe this decision is correct. Maybe the plaintiff's loss of earnings expert framed his opinion in such a way as to render it inadmissible. Maybe the plaintiff is fifty-five and never made more than $10,000 a year. Maybe the plaintiff was sixty-five and the medical expenses for the previous year were only $1000 which would make a $225,000 future medical expense award patently unreasonable. But I cannot figure out from this opinion whether the Court's decision is correct or not. And neither can trial judges who are going to have to make decisions on what evidence should go in on such points in the future.

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The United State Supreme Court has agreed to hear a case concerning an ERISA plan's legal right to sue a plan participant for reimbursement. As John Wood explains, "This important issue typically arises when an ERISA health plan pays medical bills for an injured participant. If the participant recovers from a third-party tortfeasor, the plan then seeks to recover its reimbursement interest from the participant."

Read more about the issue and the case here at John's erisaontheweb blog.

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When you can't prove a current injury but can prove that, because of the fault of another, you need to be regularly followed by a health care provider you seek damages for "medical monitoring." The claim arises is toxic tort and products liability cases.

In a case of first impression, the Sixth Circuit Court of Appeals has ruled that Tennessee law would recognize a cause of action for medical monitoring. The court said "there is something to be said for disease prevention, as opposed to disease treatment. Waiting for a plaintiff to suffer physical injury before allowing any redress whatsoever is both overly harsh and economically inefficient." (Emphasis supplied). The case, Sutton v. St. Jude Medical S.C., Inc., was brought as a class action on behalf of a proposed class of persons who underwent cardiac by[ass surgery using a medical device called the Symmetry Bypass System Connector.

Read more here.

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Another state has ruled tht a plaintiff "may present to the jury the amount that her health care providers initially billed for services rendered" rather than the amount paid by the plaintiff's insurer.

The case is Arthur v. Catour; read the opinion of the Illinois Supreme Court here. The decision cites to the law of other jurisdictions on the issue.

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