Leading Tennessee Tort Cases - Comparative Fault - Allocation of Fault to a Product

Posted on August 4, 2010 by John Day

This is one of a series of posts that will excerpt sections from the third edition of my book, Day on Torts: Leading Cases in Tennessee Tort Law.  To order the book go here.

 

§ 15.7     Allocation of Fault to a Product

The Case: Owens v. Truckstops of America v. B. Michael Design. Inc, 915 S.W.2d 420 (Tenn. 1996).

The Basic Facts: Plaintiff brought a negligence claim against a restaurant after a stool he was sitting in broke, causing him to fall. The restaurant then brought a third-party complaint against the manufacturer and seller of the stool for contribution and indemnity based on negligence, strict liability and implied warranty of merchantability.

The Bottom Line:  

  • “This conclusion is supported by portions of the Uniform Contribution Among Tort-Feasors Act not addressed in McIntyre, which provide, ‘[i]f equity requires, the collective liability of some as a group shall constitute a single share’ and ‘[p]rinciples of equity applicable to contribution generally shall apply.’ Tenn. Code Ann. § 29-11-103(2) and (3).” Id.  
  • “Consequently, joint and several liability against parties in the chain of distribution of a product is essential to the theory of strict products liability. Since strict liability does not require proof of negligence, but only that the product was defective or unreasonably dangerous, parties in the chain of distribution must be treated as a single unit for the purpose of determining and allocating fault.FN14

FN14 The dissent’s insistence that each defendant in an action for strict liability be liable to the plaintiff according to its separate “fault” would impose upon the plaintiff the burden of proving each defendant was negligent, thus abolishing strict liability.”

           915 S.W.2d at 432.

  •  “When comparative fault principles are applied in a strict liability action, the plaintiff’s fault is compared with the fault of the strictly liable defendants as a single unit. The fault of these defendants is measured by the injury caused by the defective or unreasonably dangerous product. When liability is found on strict liability and also negligence or other theories, the trier of fact must apportion the fault for the plaintiff’s injuries or damages according to the percentage of damages caused by the plaintiff, that caused by the product, and that caused by each tortfeasor acting separately and independently.FN17 This procedure was adopted by the Court in Whitehead…

FN17The following special verdict form, as adopted to the specific allegations of the case, may be used in cases where liability is predicated upon strict products liability and other theories such as negligence:

Using 100 percent as the total combined harm, find from a preponderance of the evidence the percentage of the plaintiff’s injuries or damages proximately caused by: 

The defective or unreasonably dangerous product
           (Defendants A and B) _____ %
                         Defendant X _____ %
                         Defendant Y _____ %
                                Plaintiff _____ %

 

(Total must equal 100%)
                                    _______________________
                                    Signature of Foreman 

           Id. at 433.

  • “The triers of fact will determine the percentage of a plaintiff’s damages that is attributable to the defective or unreasonably dangerous product as well as the percentage that is attributable to the plaintiff’s own fault. Whitehead v. Toyota Motor Corp., 897 S.W.2d at 693 (emphasis added). See also Duncan, 665 S.W.2d at 427 (Tex. 1984). Thus, the adoption of comparative fault did not alter that products liability law under which the liability of defendants in the chain of distribution of a product, who are liable under a theory of strict liability, is joint and several. Under comparative fault principles, however, these defendants are jointly and severally liable only for that percentage of the plaintiff’s damages caused by the product. For the percentage of damages caused by the product, the strictly liable defendants are treated as a single unit or share. On the other hand, when liability is based on negligence, each of the defendants is severally liable only for the percentage of damages caused by its negligence. If those defendants who can be held jointly and severally liable on a claim of strict liability are also charged with negligence, as in this case, their liability on the negligence charge will be as separate, independent tortfeasors, and their liability on the negligence charge will be several only.” Id.

Other Sources of Note: Wielgus v. Dover Industries, Inc., 39 S.W.3d 124, 131 (Tenn. Ct. App. 2000) (Owens not applicable under the facts).

 
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Physicians in the United States Less Likely to Use Health Information Technology

Posted on December 21, 2009 by John Day

According to the 2009 Commonwealth Fund International Health Policy Survey, only 46 percent of U.S. doctors use electronic medical records, compared to 99 percent of doctors in the Netherlands and 97 percent of doctors in New Zealand and Norway.

"We spend far more than any of the other countries in the survey, yet a majority of U.S. primary care doctors say their patients often can't afford care, and a wide majority of primary care physicians don't have advanced computer systems to access patient test results, anticipate and avoid medication errors or support care for chronically ill patients," said Commonwealth Fund Senior Vice President Cathy Schoen, lead author of an article appearing in Health Affairs.

The survey also reports that

• 58% of U.S. physicians, by far the most of any country surveyed, said their patients often had difficulty paying for medications and care. Half of U.S. doctors spend substantial time dealing with the restrictions insurance companies place on patients’ care.

• Only 29% of U.S. physicians said their practice had arrangements for getting patients afterhours care—so they could avoid visiting a hospital emergency room. Nearly all Dutch, New Zealand, and U.K. doctors said their practices had arrangements for after-hours care.

Read this article in Healthcare IT News to learn more about the survey. 

By the way, physicans who treat Medicare patients are getting a huge handout from taxpayers to adopt health care information technology.  The American Recovery and Reinvestment Act signed into law in February 2009 includes as much as $64,000 in financial incentives to physicians who have a Medicare population of 30% and up to $44,000 for those with fewer Medicare patients.    Doctors and hospitals with Medicare and Medicaid patients who have already purchased such systems and use them in a meaningful way will receive billions of dollars in incentives.

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Fee Approvals When Representing Minors

Posted on October 12, 2009 by John Day

 It was almost two years ago that I wrote about  Wright v. Wright,  No. M2007-00378-COA-R3-CV  (Tenn. Ct. App. Dec. 12, 2007).  (Post 1)  (Post 2)   Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff's lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor.  The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent.  Nor did he introduce into evidence any information relevant to  the RPC 1.5(a) factors that govern fees issues.  Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

The case was remanded so that a reasonable fee could be determined.  After discovery and a hearing, the trial judge awarded the plaintiff's lawyer a fee of $131,000.  (The amount of the settlement of wrongful death case was $425,000.)  The child's guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV  (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court's award of the $131,000 fee.  The opinion details the extensive work done on the case, and reveals how plaintiff's counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000.  Also important to the outcome:  the child was suing her grandmother, and thus a substantial  judgment (or any judgment) was certainly in doubt.

This is what the Court said about the effort of Plaintiff's counsel:

In sum, we agree with the trial court’s finding that Attorney Dunaway spent a total of 128.2 hours working on Kaitlyn’s behalf. Attorney Dunaway testified that this work included filing the complaint, gathering, reviewing, and preparing summaries of Kaitlyn’s extensive medical records, drafting and serving initial discovery requests,
responding to the defendants’ discovery, examining the parties’ insurance coverage for sources of possible recovery, researching property records to determine the extent and location of the estate’s assets, having his associate attend three depositions on his behalf, reviewing and summarizing those depositions, negotiating with the insurer regarding its subrogation interest, and attending mediation. He introduced as exhibits various summaries he had prepared of the medical records, medical expenses, and property records, in anticipation of trial. The trial judge found that Attorney Dunaway acted reasonably and performed all legal services in a proper manner.
 
Other factors from Rule of Professional Conduct 1.5(a)  were considered, including 
 
 the “amount involved and the results obtained.” Attorney Dunaway described the uncertainty he faced if the case proceeded to a jury trial, explaining that a jury might not like the fact of a child suing her grandmother’s estate and could award a minimal recovery. The trial judge also stated, “I don’t know if a Fentress County jury would have given that kind of money in that type of lawsuit.” The judge said that Attorney Dunaway obtained a “good settlement,” stating, “this was some good lawyering here to get this kind of money for this child.” We also note that the initial complaint sought $250,000 in damages, the amended complaint sought $500,000, and the settlement was $425,000. Kaitlyn’s medical expenses totaled over $180,000, but Attorney Dunaway negotiated a settlement of the insurance company’s subrogation interest for only $62,517, resulting in a benefit to her of about $118,000. The trial judge noted that Attorney Dunaway’s negotiation “sav[ed] the child a substantial amount of money.”
 
The guardian ad litem tried to argue that the fees should be determined by taking the legitimate hours spent on the case multiplied by a reasonable hourly rate.  The Court of Appeals disagreed, saying
 
The Tennessee Supreme Court specifically rejected the “lodestar approach” to setting attorney’s fees in United Medical Corp. of Tennessee, Inc. v. Hohenwald Bank and Trust Co., 703 S.W.2d 133, 137 (Tenn. 1986). “The ‘lodestar’ approach places primary emphasis on the hours of effort reasonably expended by the attorney and the rate customarily charged[.]” Id. In Tennessee, “[t]he determination of what constitutes a reasonable fee is [] a subjective judgment based on evidence and the experience of the trier of facts,” to be made after considering the factors set forth above. Id. “The amount of time expended, and the hourly rate commonly charged by attorneys for doing similar work in the community, while important, are not the only, or even the controlling, factors to be considered.” Id. at 136.
 
The lesson:  when you represent a plaintiff who is a minor or who is incompetent, or a plaintiff in a medical malpractice case, or any other case in which fees must be approved by the court, it is advisable to keep contemporaneous time records of your activities.  You should also review the factors seek forth in Rule 1.5(a) so that you can explain to the Court why your fee request is reasonable.  
 
 

 

 

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