Thoughts About A Doctor Paying A Judgment in Quarters

Dr. Roger Herrin, upset that he had to share money with those who were injured in a car wreck that also  took his son's life, paid the $500,000 he owed in quarters.   7,500 hundred pounds of quarters.  Why quarters?  "Because I couldn't do it in pennies," Herrin reportedly said.

There has been lots of press about this event, but none of it gave me a clear picture of the legal dispute that gave rise to Herrin acting in such a fashion.  Here is what my research revealed:

In what all would agree was a tragic event, Herrin's 15-year old son was killed and three other people were injured in an intersection wreck in 2001.   The at-fault driver had $100,000 in applicable liability insurance limits; this sum was paid into court.  No agreement could be reached on how to divide the $100,000, so the trial judge decided the value of each individual case and divided the money pro rata.  The Herrin death case was given the greatest value - a little over $10,000,000, just over 90% of the total damages the judge found to be present (almost $11,000,000 for all plaintiffs.)

Herrin filed a separate lawsuit against various companies he claimed had uninsured motorist coverage applicable to his son's death.  It was determined that there was $5,500,000 in such coverage available. This coverage was available only to Herrin and not to the other occupants of the vehicle.  Herrin later settled his UM claim against his own carrier for $1,650,000.  There is no public information available that I have found that reveals why the case was settled for this amount.

That left the UM coverage on the host vehicle - the vehicle in which Herrin's son and the other people were riding at the time of the accident.  After litigation which included an appeal to the Illinois Court of Appeals, the UM coverage on that vehicle was determined to be $900,000.

The trial judge then attempted to divide the $900,000 under his or her view of Illinois law.  The judge ultimately determined that Herrin was entitled to about two-thirds (a little over $667K) of the money.  An appeal followed.

In Columbia Mut. Ins. Co. v. Herrin, 965 N.E.2d 422 (Ill.App. 5 Dist. 2012), the Illinois Court of Appeals ruled that the trial judge did not follow Illinois law in dividing the host car's uninsured motorist proceeds. The controlling case on point in Illinois is Janes v. Western States Ins. Co., 783 N.E.2d  37 (Ill. 2001).  This case holds that when dividing up a limited amount of UM insurance coverage, the trial judge has to first take into account the amount that each individual received from his or her own UM carrier. This result worked to the detriment of Herrin; recall that he had $5,500,000 of UM coverage applicable to the claim (and settled that claim for $1,650,000).

The court then looked to how the trial judge valued the claims in the original trial which sought to divide the $100,000 in available liability insurance.  The court noted that the four claimants' (other than Herrin) claims were valued at $955,552.31, an amount less than what Herrin received from his own UM insurance carrier.  Thus, the court determined that under the Janes case, Herrin did not have a right to any of the UM coverage available to the occupants of the host car. (There was a dispute about whether the $1.65M or the $5.5M should be used to determine if Herrin could recover any monies, but the court did not reach the issue, noting that both numbers were greater than the value of all of the other cases; and thus it was unnecessary to determine which number should be used.)

There was also a dispute over whether the true value of each claim should have been determined in arbitration rather than by the trial court.  The court affirmed the use of the trial judge's values for division of the $100,000 liability case for the distribution of the $800,000 in UM monies.

The intermediate court remanded the case for further proceedings.  The Illinois Supreme Court refused to hear the case. 979 N.E.2d 877 (Ill. 2012).

In summary, the Court of Appeals determined that, under Illinois law, Herrin had no right to any part of the $900,000 of UM money because he had already received. $1.65M from his own UM carrier, and that amount - which exceeded the damages suffered by the other victims - left him unable to receive any money from the UM coverage for the host car.  (The result would be different in Tennessee, but different states approach this issue differently.)

So, how did Herrin end up having to pay $500,000?  Because Herrin obtained a court order getting the funds paid by the UM carrier and (temporarily) allocated by the trial court for his son's claim into the estate of his son while the appeal was pending.  (No bond was posted on this amount.) He then distributed that money to his late son's family while the appeal was pending.   When the appeal on the UM issue was lost, he was (appropriately) ordered to pay the money he distributed  back to the clerk of the trial court for the benefit of the people who were legally entitled to it.   In re Estate of Herrin, 2012 WL 7069953 (Ill. App. Dist. 5 Nov. 26, 2012). 

Apparently, some sort of settlement was reached with the other passengers and Herrin was permitted to pay only $500,000 out of the $677,851.06 that the estate actually received from the host driver's UM policy.  Thus, Herrin (or members of his family) got to keep $177,851.06 that the Illinois Court of Appeals said did not belong to him.  (At least one newspaper article refers to  "confidentiality agreements," so I assume that a deal to let Herrin keep part of the money to avoid future litigation is what was settled.)

No doubt that Herrin is still hurting over the loss of his son - who wouldn't be?.  And no doubt that it would hurt to have to pay $500,000 out of pocket to cover the risk Herrin took when he disbursed money to others that was not finally determined to belong to his son's estate.  One can understand that he might disagree with Illinois UM law.  And one can understand why Herrin might be second-guessing his decision to settle with his own UM insurer for $1.65M when there was $5.5M available and the loss was so huge.

But paying what you owe in quarters? 

That is just plain childish.

 

 

 

 

2012 Legislation of Interest to Tennessee Personal Injury Lawyers - Part 2

 Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be.  The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants. 

What follows is a second list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State's website.  I previously wrote a post about 2012 legislation of interest to Tennessee personal injury lawyers that was available on May 4.

 

  • Public Chapter 884:  purports to wipe out the liability of car dealerships for loaning cars to certain customers who have proof of insurance.
  • Public Chapter 902:  addresses when punitive damages may be awarded in Tennessee
  • Public Chapter 907:  prohibits children as passengers on motorcycles unless their legs can reach the foot-pegs.
  • Public Chapter 913:  creates a rebuttable presumption that those who sign insurance policy application have read it and  that when premium is paid all policyholders accept coverage as stated in policy or amendments thereto.
  • Public Chapter 922:  sets forth duty of landowners to those who are determined to be "trespassers".
  • Public Chapter 926:  sets up statutory scheme to permit defense counsel in health care liability actions to have ex parte communications with plaintiff's health care providers.
  • Public Chapter 998:  authorizes clerks of court to set up electronic filing system and charge filing fees.
  • Public Chapter 1046:  sets up a statutory scheme requiring courts to make loser of Rule 12 motions pay opposing party's fees and costs under certain circumstances.
  • Public Chapter 1108:  requires police officers determine whether physical barriers are present at the scene of an accident.

The increased efforts by the Legislature to codify tort law will mean that tort lawyers will be looking to statutory law to determine whether there are limits imposed on the common law or new defenses.  This is a pretty significant change for lawyers - historically, most tort law was common law.  

More Statistics on Tort Cases From the 2009-2010 AOC Annual Report on the Judiciary

As mentioned yesterday, the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary.  The Report Contains statistical data about our court system.

Today we look at information about tort cases that were filed or tried in state court in Tennessee.  "Tort cases" includes medical malpractice cases.

There were 10,469 tort cases filed in Tennessee in the year ending June 30, 2010.  This is down about 6% from two years earlier - in the year ended June 30, 2008, there were 11,171 filings. 

There were 588 tort cases tried in the year ended June 30, 2010.  Only 263 of those cases were jury trials.  Forty-two percent of cases that were tried (247 cases) were tried in Shelby, Davidson, Knox and Hamilton counties.  Monetary awards were given in less than forty percent  of the cases that went to trial (229 of out 588 cases tried).  Damages were awarded in 118 of the 247 cases tried in the largest four counties.

I will share more data from the Report tomorrow.

"Hospital, We Have a Problem"

ABA Journal.com  reports that  "in 1996, a Delaware hospital conducted an internal investigation of a pediatrician accused of inappropriate conduct with young patients and concluded he had done nothing wrong. Hence, administrators reportedly never informed the state's medical disciplinary board or law enforcement authorities of the allegations."

Now, the hospital is fearing bankruptcy because the doctor has been charged with rape and sexual abuse of over 100 children, 18 of whom have filed lawsuits.  The doctor has been indicted on over 400 counts of child sex abuse.  The name of the doctor is Earl Bradley, who is alleged to have videotaped some of his misconduct. 

The hospital is Beebe Medical Center, a 210-bed facility in Lewes, Delaware.   State law requires hospitals to report suspected professional misconduct to the state medical board.  The hospital apparently did not do so.

I obviously don't know what actually happened here, but if the hospital had information about alleged sexual abuse and did not report it as required by law it deserves to be sued.  The reporting requirements exist for a reason, and the failure to follow them should give rise to a negligence per se claim. 

 

New Decision on Diversity Jurisdiction

What is the principle place of business for a corporation for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1)?   Well, what you thought you knew is no longer the law.

The United States Supreme Court ruled yesterday that the phrase

"principal place of business' is best read asreferring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head-quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corpora-tion holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

The Court also explained that

The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936); see also 13E Wright & Miller §3602.1, at 119. When challenged on allegations ofjurisdictional facts, the parties must support their allega-tions by competent proof. McNutt, supra, at 189; 15 Moore’s §102.14, at 102–32 to 102–32.1. And when faced with such a challenge, we reject suggestions such as,for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commission’s Form 10–K listing a corporation’s “principal execu-tive offices” would, without more, be sufficient proof toestablish a corporation’s “nerve center.” See, e.g., SEC Form 10–K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court’s case file). Cf. Dimmitt & Owens Finan-cial, Inc. v. United States, 787 F. 2d 1186, 1190–1192 (CA71986) (distinguishing “principal executive office” in the taxlien context, see 26 U. S. C. §6323(f)(2), from “principal place of business” under 28 U. S. C. §1332(c)). Such possibilities would readily permit jurisdictional manipulation,thereby subverting a major reason for the insertion of the 'principal place of business” language in the diversity statute.'  If the record reveals attempts at jurisdictional manipulation—for example, that the alleged 'nerve center' is nothing morethan a mail drop box, a bare office with a computer, or the location ofan annual executive retreat—the courts should instead take as the 'nerve center' the place of actual direction, control, and coordination, in the absence of such manipulation.

You can read the opinion in Hertz v. Friend,  No. 08-1107  (USSC 2/23/10) here.

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.

Defense Firm To Be Penalized for Fraudulent Removals?

A defense firm has been threatened with severe sanctions for allegedly engaging in a pattern of fraudulently removing cases from state court to federal court in Louisiana.  Sanctions on the table?  Not only a financial penalty but also also barring members of the firm from practicing in federal court.

Here is a copy of the federal judge's memorandum opinion in the case.  The opinion certainly makes it appear that the judge has done his homework and is, shall I say, extremely irritated.

This article explains the lengths to which the firm is going to avoid sanctions.

Notice that some of the cases mentioned in the Memorandum Opinion are over seven years old.  Sanctions are been repeatedly ordered against the firm, yet is appears that improper removals continued.

This matter demonstrate the need for lawyers who compare notes about common adversaries.  Lawyers who act inappropriately don't just do it once - they do it repeatedly.  Judges often assume the conduct is a momentary lapse, and refuse to act decisively to shut it down.  So it continues, and if anything it gets worse.  A pattern must be established, and documented, before a judge will even consider decisive action. 

Rule Changes

The Tennessee Supreme Court has adopted several changes to the rules of civil procedure, evidence and appellate procedure.  By orders dated earlier this month, the Court adopted the recommendations of the Rules Commission about the changes that were necessary.

The changes now go to the General Assembly for its review, where they can be passed or defeated but not amended.  Of course, the Court can always withdraw one or more rules if passage of the entire package is threatened by a rule change the Legislature does not like.

Here are the relevant orders.

The major changes:

TRCP 23.08 - provides for the disposition of residual funds after a class action case.

TRCP 34.03 - provides for the production of documents and things and inspection of property of non-parties.

TRCP 52.01 - provides that a trial judge must make findings of fact and conclusions of law in a non-jury case.

TRCP 65.03 - provides that ordinarily there must be notice to adverse party before getting a TRO.

TRE 703 - provides that data relied upon by experts that is otherwise inadmissible cannot be disclosed to jury absent a TRE 403-type weighing by the judge.

TRE 803(26) - provides for the admissibility, as substantive proof, of certain prior inconsistent statements.

In addition, there is a whole new set of e-discovery rules.

ALI Meeting

I am at a meeting of the Members Consultative Group of the Restatement of the Law Third Torts: Liability for Physical and Emotional Harm sponsored by the American Law Institute.  The meeting is being held in Austin, Texas at the University of Texas Law School.  We are discussing "Duty of Land Possessors."

Last night we had dinner at the Mansion at Judge's Hill and I had the pleasure of sitting with Victor Schwartz, an editor of the torts case book that most of us used in law school and an active tort reformer.  (Indeed, he is General Counsel to the American Tort Reform Association.)  We had a wonderful conversation, agreeing on more things than both of us expected and politely disagreeing on other points.  Victor has a great sense of humor and  a real gift of imitating the voices of many political figures. 

This morning we are debating the duty, if any, of landowner's and possessors to trespassers and the exceptions to the historic general rule of no liability.  I am enjoying the debate immensely - a lot of thought has been given to the issue by the drafters and the members who are present are raising some excellent points. 

New Jersey Jury Finds Merck Not Liable

In the second Vioxx case, the New Jersey jury ruled Merck not liable. Read about it at Forbes.

Second Vioxx Verdict is Coming In

Jurors have apparently reached a verdict in the second Vioxx case. It is expected to be announced in the next few minutes. (From ABC News).

$20 Million Bond for Failure to Comply with Discovery Orders

An Arkansas class action case against a nursing home company is getting ugly even in discovery. The trial judge threatened to imprison the defendant company's officers for refusing to comply with court ordered discovery. Then, the trial judge required them to post a $20 million bond for their failure to comply with the discovery orders. The Arkansas Supreme Court recently affirmed the trial judge's bond requirement. Read about it over at our Tennessee Business Litigation blog.

Florida Tort Reform

The Florida voters passed a constitutional amendment to limit attorneys' fees in med mal cases to 30% of the first $250K in damages and 10% in any recovery about $250K.

So, a $1M verdict would entitle the patient's attorney to a total fee of $130K. A $2M verdict would result in a fee of $260K. The result: in other than a slam dunk case where no liability or causation discovery was necessary, a plaintiff's attorney would be working for $100 per hour or less, an amount less than the paralegal rate in major cities.

Florida plaintiffs' attorneys then starting giving their potential clients the option of waiving their "constitutional right" to a fee cap.

Now, 55 Florida lawyers have filed a petition to ask the Florida Supreme Court to cap the fees of plaintiffs' attorneys in med mal cases by rule. Here is the petition they filed. The Petition was filed by Holland & Knight, a law firm that has 52 lawyers that represent the health care industry.

These lawyers who signed this Petition have the right to free speech. So do I. Each of the lawyers are an embarrassment to the profession. Each of them know - or should know - that these fee caps work to deprive med mal victims of representation by good lawyers. To the extent that any of these lawyers defend malpractice cases, they obviously fear competent representation of a patient. I would suggest that these lawyers get out of med mal defense work and do something more consistent with their confidence in their ability to persuade like, say, working the floating plastic duckling concession at a carnival.

Most med mal lawyers I know know how difficult (and expensive) it is to prepare and try a med mal case for the plaintiff. Most would agree that these caps are absolutely ridiculous.

The Florida lawyers who filed this Petition ought to be ashamed. Hopefully, the Florida Supreme Court will reject it.

Thanks to Abstract Appeal for bringing this Petition to my attention.

Case Involving Suicide Allowed to Proceed

Elizabeth Shin, a student at MIT, committed suicide. Her parents sued MIT and others. A trial judge has dismissed the case against MIT but allowed it to procede against two psychiatrists and two administrators who are not mental health professionals. This article in the Boston Globe has a nice discussion of the legal theory advanced by the plaintiffs and accepted by the trial judge.

The plaintiffs are pushing the envelope on this one. However, as I said to a fellow plaintiffs' lawyer the other day, there are only two types of lawyers who make common law - those that are stupid and those who take calculated risks.

Let me explain. Some of us take cases with full knowledge that we are going to have to advance the law to get to a jury. Some folks take cases with no idea that they have no right to recovery until they see the motion to dismiss or motion for summary judgment. The problem with the latter approach is that some cases do not have the right facts to make good law or the facts are not developed appropriately to make good law. Similarly, if you don't know you are pushing the envelope it may be hard to muster the best arguments in the time period allowed to respond to a motion.

Legal research may be boring, but whenever a case does not fit into a well-defined, long-standing pigeon hole it makes sense to do a little homework first and get a reading of the legal landscape. Any "new" (i.e. less than 20 years old) theory of recovery or any theory not routinely a part of the appellate decisions in your state is probably not mature enough to assume that the law is stable.

I am all in favor of pushing the envelope in appropriate cases. The key is selecting the cases where the envelope should be pushed, and then developing the facts and mustering the arguments necessary to give it the best shot.

You can't break the sound barrier in a Piper Cub.

Results of Mississippi Trial

Paul Minor, a friend and plaintiff's lawyer from Mississippi, was indicted on a bunch of charges, including bribery. Oliver Diaz, Jr., a member of the Mississippi Supreme Court whom I got to know during some trips to Mississippi, was also indicted.

The trial has been going on for weeks. Last week, Justice Diaz was found "not guilty" on all counts and Paul was found "not guilty" on several counts and the jury was hung on some others.

Some folks say that Paul and the Justice's most damning sin was that they were Democrats.

Produce Emails or Go to Jail

Over at our Tennessee Business Litigation blog, read about an Arkansas state judge's decision to order sanctions against a nursing home chain in a class action suit. The sanctions arise from failure to produce emails and other electronic documents, and include $25,000 in attorney's fees and possible jail time.

Tort Reform - A Movement That Refuses to Die

The tort reform movement, lacking in facts but fueled by greed and ignorance, will not die. It cannot, because there are too many lobbyists and tort reform special interest groups that need for it to be kept alive. The so-called reformers receive hundreds of millions of dollars per year to "keep hope alive" for the business and insurance industries. They can't just let that money go away.

Here is an article that describes that current state and the direction of the movement.

Love Boat Sinks

They hooked-up on the Internet and then he allegedly cheated her out of $70,000. She's mad, not going to take it anymore, and files suit.

I hope her lawyer is getting paid by the hour. I'm not saying she doesn't have a valid case - she might. I'm just saying that if she does the defendant is going to have at least one year to spend what he has.

The "100 Grand" Lawsuit

Radio station has a contest. If you are the 10th caller during a given hour you get "100 Grand." Woman wins, and they give her a "100 Grand" candy bar. Woman, disappointed and undoubtedly a little embarrassed because she told her family she had won $100,000, sued the radio station. Read the articlehere.

I don't know how I feel about this. I would have to hear the announcments concerning the prize to try to see in what context they used the phrase "100 Grand."

One thing is for sure - the station has gotten alot more than $100,000 worth of publicity out of this little stunt - which may well have been the intention all along.

Merck Tried to Make Changes to Vioxx

Here is a fascinating article about what was going on at Merck a few years ago.

Here's a clip to wet your whistle:

"The widely publicized study in March 2000 found that patients taking Vioxx were five times more likely to have heart attacks than individuals using the generic medicine naproxen. Merck insisted at the time that this was a result of naproxen's cardioprotective properties and not any defect in Vioxx.

But behind the scenes, company scientists were considering combining Vioxx with another agent to reduce the risk of heart attacks and strokes, according to a document that was mistakenly provided by Merck to plaintiffs lawyers as part of the evidence-gathering process in one of the hundreds of Vioxx lawsuits around the country. ...

According to the document, Edward Scolnick, the former head of Merck's research labs, was the first to suggest combining Vioxx with an agent that would block blood platelets from clotting. Such clots can lead to heart attacks and strokes. There are three dates on the document; the first is March 30, 2000. "

This document was leaked to the press despite a court order that it and all copies of it were supposed to be returned to Merck because it was privileged. I hope it was a Merck employee and not a representative of the plaintiffs who leaked it.

Schiavo Case Now Closed - For Everyone But the Politicians

Senator Frist now says that he did not diagnosis Ms. Schiavo by looking at her on videotape.

At the time, the Senator said "I question [the diagnosis of her doctors] based on a review of the video footage. ... And that footage, to me, depicted something very different than persistent vegetative state."

For a man who regularly lets everyone know that he is a doctor ("a transplant surgeon") that sure sounds like a diagosis. If Tom DeLay made such a statement it would not be a diagnosis - he killed bugs for a living. But from a surgeon ....

Now that the autopsy results are in the spin begins. Why not just admit that in the heat of the moment you misspoke? Why not just admit that it is impossible to diagnose a person by simply looking at a video - or at least that any doctor who just looked at a video would defer to the treating physicians?

The Senator wants to be President. The Senator has demonstrated that he needs to go back to practicing medicine.

The Michael Jackson Trial

Well, we now we know what 12 people thought about the charges brought by the DA against the King of Pop. I did not follow the trial closely enough to offer an opinion about whether or not I agree with the jury, although I must say that the defense seemed to have a field day with the mother of the young man allegedly involved. (I did not follow the trial because the commentators drive me absolutely nuts. A few of them are rational, but I can never remember their names or what network they appear on and I do not want to watch one minute of coverage by the crazy commentators to see if a good one will show up.)

I have heard the DA say "you can't pick your victims." True. But, as DA, you can pick your cases. Every DA makes decisions every day about what crimes to prosecute. Not infrequently crimes aren't prosecuted because the DA, after looking at all of evidence and the people who will be presenting it, determines that it would be difficult to convict.

Here is a nice story about Michael's lead lawyer who, I am sure, is on Cloud 9 this morning.

So, what will happen with the civil suit? And what about the one pending in Louisana? In civil cases the burden of proof is less - preponderance of the evidence as opposed to the "beyond a reasonable doubt" standard used in a criminal case. Will we have an OJ-type result in California - a civil jury reaching a different result from the criminal jury?

Michael has won the first battle in what may be a long war.

Are You Really Surprised?

The Bush Administration decided to pursue the case against the tobacco companies originally filed during the Clinton Administration. The Justice Department has spent the last 5+ years working on the case and it has been in trial for months. One of their experts said the proposed remedy would cost $130 billion dollars. So what does the Administration request from the Judge?

Ten billion dollars. To be paid over five years.

This caused the Judge to comment "Perhaps it suggests that additional influences have been brought to bear on what the government's case is." (Read more here.)

No - that simply isn't possible. The Bush Administration wouldn't take a fall to benefit any particular industry. They wouldn't allow an industry to steer policy. In fact, I was talking to some of my friends who work for energy-related concerns, and they confirmed that the Bush Administration has strict rules about this sort of things.

Sleep well.

New Tennessee Business Litigation Blog

I am embarrassed to say that six months ago I did not even know what a blog was. Well, maybe I knew what one was - I have some recollection about reading stories about political blogs during the last presidential campaign - but I had never looked at one. I was just busy.

I like to think I stay current in my field, but I must confess that I missed alot by not taking advantage of the knowledge that my (now) fellow bloggers have been sharing via their blogs. I hit several blogs everyday; over the next few weeks I will share my favorites with you.

Our firm hopes to add to this body of knowledge by introducing another blog called the "Tennessee Business Litigation Law Blog." Brandon Bass of our firm is the chief blogger on this one, but other people in our firm will be adding posts as appropriate. The purpose of this blog is to gather and share information of interest to corporate counsel and executives, small business owners, and the people that represent them about recent developments in commerical litigation and business law. It will concentrate on the law of the Tennessee, but will gather interesting and useful information from around the nation.

Although our firm is best known for its work on behalf of plaintiffs in tort litigation, we have always had an active commerical litigation practice. (We do not defend personal injury or wrongful death cases.) Frankly, I like the mix between the two, although I often find that people who do only commerical litigation have difficulty focusing of what is really important about the problem at hand. I think it is important to be able (and willing) to identify the goal line in every case, and then to proceed toward that goal line in as straight of line as possible, a philosphy no doubt influenced by my 24 years of working on a contingent fee basis.

We hope that those of you who are lawyers will find our new blog to be helpful in your practice. Let us know what you think about it. In fact, while you are at it, let us know what additional types of information you would like us to give you in this blog.

Football Players Settle Lawsuit

OAKLAND, Calif. -- ESPN has reported that former Oakland Raiders teammates Marcus Williams and Bill Romanowski are settling their legal dispute.

Williams' career ended after his eye socket was broken by Romanowski, who ripped off Williams' helmet during a practice drill and hit him in the face. Williams sued Romanowski for battery. A jury ordered Romanowski to pay Williams $340,000 in damages. Williams was dissatisfied with the result and convinced Romanowski to pay $415,000 to end the dispute.

Football is a rough game, particularly in Oakland. But there is - appropriately - a limit to when you play rough and how you do it. Cheap shots can be expensive.

Chief Justice Drowota Announces Retirement

It has been rumored for over a year that our Chief Justice would retire this year, and in fact his retirement party has been in the planning stages for some time. However, it is now official: effective September 2, 2005 we will be losing Frank Drowota as a member of our appellate court. The Chief Justice has served on either the Court of Appeals or the Supreme Court for 31 years. Read his announcement here.

The new justice will be appointed by the Governor from a panel of three selected by the Appellate Court Nominating Commission. I believe that the next judge can come from either Middle or West Tennessee, although I have heard that others have a different opinion. In fact, at least one person thinks that the next justice will be selected in an election.

I will keep you updated.

Toilet Explodes - Lawsuit Privacy

This would be funny - if it wasn't true.

John Jenkins sat down in a portable toilet to start and finish some personal business and have a cigarette - and the toilet exploded!

Apparently, there was a methane gas leaking from a broken pipe under the toilet. When Jenkins struck the lighter there was an explosion and he was burned.

He has filed suit against the property owner and the construction company that allegedly damaged the pipe.

Read the story here.

Do you think either defendant will allege comparative fault on Mr. Jenkins? In Tennessee, defendants can allege fault against non-parties. I know two defense lawyers who would allege fault against the Mexican restaurant where Mr. Jenkins purchased and ate a burrito for lunch.

Arthur Anderson Conviction Overturned

This is off topic, but very interesting. The United States Supreme Court has just overturned Arthur Anderson's criminal conviction. The Court held that a key jury instruction was in error.

Read the opinion here.

Perlman Wins Case Against Morgan Stanley

Investor Ron Perlman won big in his case against Morgan Stanley. Compensatory damages were $604.3 million. Punitive damages - limited under Florida law to three times the compensatory award - were pegged by the jury at $850 million.

Regular readers will recall the the trial judge eliminated liability as an issue after Morgan Stanley was caught playing games with discovery. The sole issues before the jury were reliance and damages.

The Company fired its law firm shortly before trial, and was given only a short continuance to allow new counsel to get up to speed. Morgan Stanley has less than $500 million reserved for this case; with interest running at $250,000 per day look for a settlement soon.

It is Now OK to Structure Attorney's Fees

The passage of IRS Code Section 409A cast doubt on the ability of lawyers to structure attorney's fees in personal injury cases. The IRS has issued new guidelines that make it clear that, if certain conditions are met, attorney's fees can be deferred in contingent fee cases.

Read about the new guidelines here. To learn more talk to a qualified structured settlement broker.

Nancy Grace Falls from Grace

I know this is off topic - but I don't care. Nancy Grace disgusts me. I know she lost her future husband to a murderer; that is horrible. I know she is profoundly pro-prosecution; no problem.

But she is also a lawyer. Her outrageous comments about the legal system offend me. She makes no attempt to be objective. She makes no attempt to analyze. She is not a talking head - she is a screaming skull. She is an embarrassment to the profession.

To read about the way she conducted herself as a prosecutor - a public office that represents the people - read this article. Given the way she conducts herself on TV you will not be surprised to learn how she used to conduct herself in a courtroom.