Former ATLA President Howard Twiggs has died.   Funeral services are today.  Howard has been a friend for over 25 years and was a leader in the plaintiff's trial bar and his community.

I first met Howard at a NCATL seminar in Chapel Hill, NC when I was still a law student.  Later, we became re-acquainted at ATLA conventions and meetings around the country.  About 12 years ago we had the pleasure of working on a case together, helping a North Carolina family that had a tragic accident on I-40 near Lebanon, TN.    Thus, we had time to get to know one another in a long car rides and over dinner in my home, as opposed to simply running into each other at a reception at convention or two.

I say all of that to say this:  Howard Twiggs was a very, very fine man and an extremely competent lawyer.  He had a love for his fellow man, and felt duty-bound to help them, especially those who were not blessed with his intellect and his health.  He loved his adopted state of North Carolina, and had that wonderful accent that always took me back 1978, when I left WI and jumped into life in the South.

I had the pleasure of seeing Howard five weeks ago in Maui.  He was there with  his daughters, still going to education sessions and trying to learn how to better serve his clients.  

Howard, my friend, we will miss you.

To gain a better understanding about this wonderful man, read the obituary after the jump.

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 Trey Mills is angry at Allstate.  He explains why on his South Carolina Injury Law Journal blog.

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My daughter was hurt in a soccer game because the ref refused to reign in a reckless player on the opposing team.  Can I sue?  My son is devastated because he was improperly called out on strikes by a blind umpire.  Can I sue?

Setting aside the merits of these complaints, or the wisdom of pursing such a claim, Tennessee law gives a relatively high level of immunity to sports officials.  Under T. C. A. Section 62-50-201, a “'sports official' means any person who serves as referee, umpire, linesperson or in any similar capacity in supervising or administering a sports event and who is registered as a member of a local, state, regional or national organization that provides training and educational opportunities for sports officials."

Section 62-50-202 provides that "[a] sports official who administers or supervises a sports event at any level of competition is not liable to any person or entity in any civil action for damages to a player, participant or spectator as a result of the sports official's act of commission or omission arising out of the sports official's duties or activities."

Section 62-50-203 limit Section 202 and says that "civil immunity [is not granted] to a sports official who intentionally or by gross negligence inflicts injury or damage to a person or entity."

Thus, under Tennessee law, a person trying to sue a ref has a very difficult hill to climb.  Indeed, absent intentional conduct or misconduct under the influence of drugs or alcohol, I have a difficult time imagining how a claim against a ref would ever survive a motion to dismiss.

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 The Tennessee Adult Protection Act, T. C. A. Sec. 71-6-101 et seq, creates civil action for compensatory  and, as appropriate, punitive damages when "adults" covered by the act are victims of abuse or neglect, sexual abuse or exploitation and  for theft of  money or property whether by fraud, deceit, coercion or otherwise.  Those covered by the Act fall within this definition of adult:

 “Adult” means a person eighteen (18) years of age or older who because of mental or physical dysfunctioning or advanced age is unable to manage such person's own resources, carry out the activities of daily living, or protect such person from neglect, hazardous or abusive situations without assistance from others and who has no available, willing, and responsibly able person for assistance and who may be in need of protective services; provided, however, that a person eighteen (18) years of age or older who is mentally impaired but still competent shall be deemed to be a person with mental dysfunction for the purposes of this chapter

The Act also permits recovery of attorneys' fees in certain circumstances.

The Pennsylvania Fiduciary Litigation Blog has an interesting post that shares a checklist on how to determine if someone has been a victim of undue influence.  (I hasten to add that the original source of the data was the Florida Probate and Trust Litigation Blog.) The Undue Influence Worksheet  "is based upon the IDEAL protocol, which combines knowledge from the fields of psychiatry, psychology, and sociology regarding the mechanisms of human manipulation, with extensive review of statutes, case law, and legal theory. IDEAL describes those psychological and social factors that commonly co-exist in undue influence situations.  IDEAL stands for Isolation,  Dependency, Emotional Manipulation and / or Exploitation, Acquiescence and Loss.

The worksheet explains each of the factors and has a form for gathering and organizing information.

Good stuff.  This form will help you analyze financial cases that you are thinking about bringing under the Tennessee Adult Protection Act. 

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As a Tennessee injury lawyer I receive calls from time to time from parents of children who have been injured by a foster parent.  Indeed, several years ago our firm represented a parent of a pregnant teenager who was killed as a result of careless driving by her foster parent.

Can a person injured by the negligence of a foster parent sue the foster parent?  Can the parents of a foster child sue the foster parent if the foster parent negligently causes the death of the foster child?  In Tennessee, the answer is "no."

Under Tennessee law, a foster parent is deemed to be a state employee and is immune from a lawsuit for injuries or death caused by the negligence of the foster parent.  Here is the provision from the Tennessee Code that defines "state employee" to include foster parents:

 'State employee' means any person who is a state official, including members of the general assembly and legislative officials elected by the general assembly, or any person who is employed in the service of and whose compensation is payable by the state, or any person who is employed by the state whose compensation is paid in whole or in part from federal funds, but does not include any person employed on a contractual or percentage basis. 'State employee' includes a foster parent under a contract with the state of Tennessee to provide foster home care for children in the care and custody of the state and within the confines of the foster parent-child relationship. 

Tenn. Code Ann. Sec. 8-42-101 (3)  (A) (emphasis added).

This does not mean that the personal injury or wrongful death victim has no rights, however.  Because the foster parent is treated as a state employee, the State of Tennessee is liable for the negligent acts and omissions of the foster parent under many circumstances, including the operation of a motor vehicle.  Here is the relevant statute.

Ordinarily, a personal injury or wrongful death case against the State of Tennessee must be filed in the state Claims Commission.  The case is heard by one of three claims commissioners, not a jury.  The cases are defended by the Tennessee Attorney General's office. The Tennessee Rules of Civil Procedure and Evidence generally apply during the preparation and trial of these cases, with some exceptions.  Damages are determined as they are otherwise determined under Tennessee law, but no punitive damages may be awarded. The maximum damage award against the State of Tennessee in claims arising out of the negligence of state employees is $300,000 per person, $1,000,000 per occurrence.

What happens when a foster parent intentionally harms a foster child?  That will be the subject of a future post.

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Check out this commercial.    

I don't think this type of advertising would impact the lawyer's credibility before the average Texas jury.  Do you?

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Work is underway on the third edition of  Day on Torts: A Handbook for Tennessee Tort Lawyers. Laura Bishop and I have already identified over 30 new sections that need to be added to the book, as well as citations to well over 200 new cases. 

If you have come across a topic that you believe should be included in the next edition please send me an email at jday@dayblair.com and we will find the leading case and add it to the book.  

It is our hope to have the new book available in April of 2010.   Hundreds of lawyers across Tennessee are using the earlier editions of the book and we believe that the new edition will be even more valuable to our fellow lawyers.

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Some of you heard me rant about West Publishing Company during the recent Justice Programs seminar.  Well, here are a couple great posts about West's pollution of the blawgosphere. 

The controversy arose when Findlaw launched "The New York Personal Injury Law Blog" years after a wonderful blog by the same name was started by Eric Turkewitz.

Here is an excerpt from The Legal Satryricon:

One thing about knock offs — they are usually crappy and cheap imitations of the original. Findlaw’s blog is no exception. The writing on the knock off is crappy and bland, informs you of nothing, provides zero value, and is just so many wasted pixels screaming out to the search engines “PLEEEEASE READ MY ADS!”

...

Findlaw ripped off Turkewitz. Not only that, but they ripped him off in a really bland and lame way, and they ripped him off to support a complete piece of shit business model. If you think a Findlaw ad is the way to market your law practice, maybe you should think about their business ethics, business judgment, and what it says about you as a lawyer.

Eric's thoughts come through on this excerpt of one of his posts on the issue:

To be clear, dreck-bloggers aren't interested in creating good content, they simply regurgitate local accident or arrest stories and place a call-to-action link at the bottom. Posts are filled with buzzwords to game Google that, if coupled with the call-to-action for a recent event, places them firmly in the camp of Solicitation 2.0, a subject I dealt with two years ago. Put bluntly, many of these dung-blogs are electronically soliciting clients. E-chasing, for lack of a better word.

Last but not least, here is Kevin O'Keefe's view:

FindLaw's conduct is beneath everything we have the right to expect from companies serving the legal profession. Rather than conduct itself in a way that improves the image of lawyers and upholds the dignity of our profession, FindLaw gets down in the gutter so it can sell marketing services to lawyers who have not a clue what FindLaw is doing to trash our profession. A profession in which West Publishing once played a proud role.

Boy has a first class legal publishing company once held in esteem by lawyers, judges, and law schools fallen. All in the name of greed.

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The Tennessee Administrative Office of the Courts has released the 2008-09  Annual Report of the Tennessee Judiciary.   The report includes information about court filings and dispositions for the fiscal year ending June 30, 2009.

Here is some of the important data included in the Report:

1.  There were only 10,659 personal injury and wrongful death cases filed in 2008-09.  The backlog of cases is neither increasing or decreasing - case dispositions were about the same as filings at 10,768.

2.  Medical malpractice filings were down about 20% from a year earlier.   There were only 426 medical malpractice cases filed for the year and there  were 479 medical malpractice cases that were disposed of in the same period.  In the 2007-08 fiscal year, there were 537 cases filed.  In the 2006-07 fiscal year there were 584 cases filed.  In the 2005-06 fiscal year there were 638 cases filed.

3.  Of the 11,247 case dispositions during the year, only 608 (5.4 percent) proceeded to trial. Jury trials accounted for 260 (42.8 percent) and non-jury trials accounted for 348 (57.2 percent) cases that proceeded to trial.

4.  The four metropolitan areas (Davidson, Hamilton, Knox and Shelby Counties) reported 199 cases proceeding to trial, representing 32.7 percent of cases proceeding to trial.  Shelby County had only 48 jury trials in personal injury, wrongful death and medical malpractice cases during the year.  Davidson County had 65, Hamilton had 51, and Knox had 59.

5.  The number of trials is up from 2007-08 and 2006-07 but down from prior years.   For example, there were 763 jury and non-jury trials in personal injury, wrongful death and medical malpractice cases in 2002-03.

6.  There were 26 medical malpractice cases tried during the fiscal year.  Total monetary awards were $16,419,443.  The report does not indicate how many plaintiff verdicts or defense verdicts.  In 2007-08 there were 20 medical malpractice trials.  In 2006-07 there were 15 cases tried and the total monetary damages were $55, 167.  In 2005-06 there were 13 trials (and no damages awarded in any of them).

7.  Of the 608 cases statewide proceeding to trial in fiscal year 2008-2009, 281 received monetary awards. That is a win-rate for plaintiffs of only 46.2%.  Of course, that assumes that winning plaintiffs were offered no money before trial.   If pre-trial offers are considered, the "win" rate is presumably less (because "winning" a trial but receiving less than the amount offered by the defendant is not much of a "win").

8.  The statewide total awarded is $83,618,431, which is an increase of $25,588,518 from the previous fiscal year.  This number is greatly skewed by a judgment for over $19 million out of Putnam County is a paralysis case.  This judgment is almost certainly not collectible.

9.  There were 15 judgments (jury and non-jury) of $1,000,000 and more and only 36 between $100,000 and $999,999.  Davidson County had 3 judgments over $1,000,000.  Shelby and Hamilton each had one judgment of $1,000,000 or more.  Knox had none.

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Thanks for David E. Mills, lawyer and cartoonist, whose work can be enjoyed at Courtoons.  David's work is available for purchase.

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Lawyer Mark Lambert , an attorney with the Cochran Firm in Memphis, has been sued by Greg Herbers, a Memphis hair stylist, over injuries Herbers says he received in an alteration with Lambert in the bathroom of a Memphis bar.

According to the story in the Commercial Appeal, Herbers

entered the restroom around 9 p.m. and noticed the one stall was occupied by two men "performing some activity other than going to the bathroom." Herbers said that when he told the men he needed to use the toilet, Lambert, who was standing at the urinal but appeared to know the men in the stall, became aggressive. Lambert allegedly approached Herbers in a "menacing" fashion and jumped on him, grabbing his head and clawing at his neck.  Herbers said the next thing he felt was excruciating pain.  He heard teeth crunch and noticed blood pouring from his left nostril.  

The newspaper article reports that Lambert and the two men in the stall fled the bathroom and the scene.

In a phone interview with Action News 5, a Memphis television station,  Lambert said he only acted in self-defense after Herbers physically assaulted him for no reason.  Lambert admitted to biting off part of Herbers' nose, but says he spit it out  and didn't swallow it.   You can see the news report and photographs of the injuries here.

As a warning to those who might be inclined for whatever reason to bite another person, I am quite sure that Lambert was surprised to learn that Herbers is HIV-positive. Friendly medical advice from a person who is not a doctor:  do not bite and draw blood from someone who is HIV-positive.

The Dish in Cooper-Young is the bar where the incident occurred.   Cooper- Young is a neighborhood in the Midtown section of Memphis.

I cannot put my hands on a copy of the complaint but it certainly alleges the tort of battery at the very least.  A battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact. Doe v. Mama Taori's Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. April 5, 2001).  Biting someone certainly qualifies as battery.

Self-defense is a complete defense to a civil action for battery in Tennessee.  Persons are entitled to use force to defend themselves only as long as the threat of injury exists and may use only such force as is necessary to defend themselves.  Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002).  In this case, the burden of proving that defense will be on Mr. Lambert.

For reasons unknown to me, these cases are not available on Google Scholar.  The cited  cases and other cases are discussed in Chapter 5 of my book, Day on Torts:  A Handbook for Tennessee Tort Lawyers 2009.

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The Seventh Circuit Court of Appeals has affirmed the dismissal of a case against Wal-Mart for selling bullets to a person without requiring her to present an identification card as required by Illinois law.  Candice Johnson later used the bullets to commit suicide.  Her husband filed suit, alleging that his wife did not have an identification card in her possession and Wal-Mart's violation of the Illinois statute requiring proof of identification was the proximate cause of her death.  He also alleged that she should not have been sold a gun because she had been a mental patient within the previous five years and thus should not have been sold a weapon.  The opinion does not say whether Wal-Mart knew of her prior status as a mental patient.

Wal-mart argued that the act of suicide was a superceding cause and thus it was not responsible for the death.  It also argued that the violation of Illinois law was not the cause of Ms. Johnson's death.

The appellate court accepted Wal-Mart's arguments, saying that under Illinois law suicide is ordinarily an unforeseeable event and thus causation was not present as a matter of law.

Unfortunately, the opinion does not us any information about why the decedent did not have personal identification or whether Wal-Mart knew that she was a recent mental patient.   I had one of these cases about 20 years ago, but in my case K-Mart had actual knowledge that my client was a former mental patient and it sold her the gun she used to kill herself anyway.  Tennessee has a different view of the relationship between suicide and causation than Illinois.  See White v. Lawrence, 975 W.W. 2d 525 (Tenn. 1998).  Here is an excerpt from White:

the foreseeability or likelihood of a suicide does not necessarily depend upon the mental capacity of the deceased at the time the suicide was committed. The fact that the deceased was not insane or bereft of reason does not necessarily lead to the conclusion that the suicide, which is the purported intervening cause, is unforeseeable. As our cases dealing with proximate or legal causation have indicated, the crucial inquiry is whether the defendant's negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide. If so, the suicide is not an independent intervening cause breaking the chain of legal causation. Those decisions holding to the contrary are overruled.

...

The record in this case shows that reasonable minds could conclude that the decedent's act of suicide was a foreseeable consequence of the defendant's negligence in surreptitiously prescribing and administering the Antabuse. The record shows that leading risk factors for suicide include physical illness and depression. The decedent suffered from both. The plaintiff presented medical proof that the decedent's suicide was reasonably foreseeable from a medical standpoint, and that the defendant's conduct was a substantial factor in bringing about the suicide. Both Dr. Pate and Dr. Smith testified that the defendant should have reasonably foreseen that secretly prescribing Antabuse to an alcoholic and depressed patient would cause severe physical problems and could cause the decedent to choose to end his life. The jury could thus find that the suicide was the foreseeable result of the defendant's negligence.

(Note:  White was not on the books when our case was tried.  We had a difficult fight on Rule 12, 56 and 50 motions.  We received a plaintiff's verdict, but it for a modest amount.)

The case is Johnson v. Wal-Mart, No. 08-1126 (7th Cir.  Dec. 1, 2009).

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More information continues to be leaked to the media about Tiger Woods' alleged mistresses, and  news reports indicate that at least one of them has confirmed a long-lasting affair.

What does the law of torts say about this?  Alienation of affections, criminal conversation, and reckless  infliction of emotional distress immediately come to mind as potential claims that Ms.Nordegren could assert any woman who had a sexual relationship with her husband.

What is alienation of affections?  In Tennessee, alienation of affections  "is the willful and malicious interference with the marriage relation by a third party, without justification or excuse." Donnell v. Donnell, 220 Tenn. 169, 415 S.W.2d 127, 132 (1967).  The cause of action  was abolished by statute in Tennessee in 1989.  

Criminal conversation is sometimes referred to as the tort of seduction. In Tennessee, "a prima facie case merely requires proof of a valid marriage between the spouses and sexual intercourse between defendant and plaintiff's spouse during coverture."   Hanover v. Ruch, 809 S.W.2d 893 (Tenn. 1991.)  Hanover abolished criminal conversation as a tort in Tennessee.

Very few states still recognize these causes of action.  (I do not have the time to do a 50-state search to ascertain the exact answer to the question of which states still recognize these claims.)  Nor do I know how conflict of law principles would apply to the question of whether a tort claim could be brought.  What do I mean by that?  Well,  the Woods family seems to have their  principle place of residence in Florida.  I do not believe either tort is recognized in Florida.  But, assuming that Mr. Woods did have sexual intercourse with a woman other than his wife in a state where one or both of these causes of actions still exist, one could make an argument that the law of that state should apply and give rise to a cause of action to his wife against the mistress.  Why?  That is the place where the tort occurred.  As indicated, this would turn on a conflict of laws question - should the governing law be the law where the tort occurred or where the injury occurred?  And that in turn would depend on the law of conflicts of law in the state where such an action was filed.

The reckless infliction of emotional distress claim is a little different.  Also known as the tort of outrageous conduct, it has three elements: first, "the conduct complained of must be intentional or reckless"; second, "the conduct must be so outrageous that it is not tolerated by civilized society"; and third, "the conduct complained of must result in serious mental injury." (Read more about reckless infliction of emotional distress in the opinion on the case we filed against the Diocese of Nashville concerning its efforts to conceal the acts of a priest who had abused numerous boys, Doe 1 v. Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005)).  If a state abolished  the torts of alienation of affections and criminal conversation on public policy grounds, it is reasonable to assume that the state would hold that a RIED claim could not  be asserted for conduct that was covered by the abolished torts.

However, the more interesting issue is whether  Ms.Nordegren has a  RIED claim against a woman for  talking to the press about the affair - which understandably would cause severe emotional distress to Tiger's wife and his children.   For instance, the press has reported that one woman supplied a voice mail and emails to the press.  If this is true, one might argue that she  is engaging in conduct that is outrageous.  Why?  When viewed In the light most favorable to the Ms. Nordegren, the mistress is deliberately giving very personal information to the media about an affair she voluntarily entered into with a man she knew was married and who had children knowing that it will be widely reported in the media- and  for what purpose?  

I am not excusing Tiger's conduct, but there is no good reason I can think of for any person he was involved with during his marriage to give interviews and personal information about the relationship to the press.  Such conduct simply fans the flames of a burning press - and causes more heartache for all involved.  Perhaps Tiger deserves the bad publicity - maybe he deserves a swift kick in the butt - but his wife and children do not. 

Now, I am not saying that Ms.Nordegren should assert any of these claims or even hire a lawyer to investigate them.  Nor am I saying that she could win the claims - indeed, I can think of several potential affirmative defenses to a RIED claim.  Filing such claims would simply fan the flames of the press even more and cause additional stress in an already stressful situation.  At best, it would result in a judgment against a person who, after consuming their 15 seconds of fame ( which is usually followed by relentless whining about being "forced" into the public spotlight), will simply be known as a person who slept with Tiger Woods and wasn't mature enough to keep the fact and details to herself. 

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There are two reasons there is not a substantive post today.  First, I am speaking for three hours at our Justice Programs seminar today and am quite busy.

Second, my wife Joy and I went to see Bruce Springsteen in concert last night in Nashville and I did not get to bed until 12:30 this morning.  The Boss gave a great 3-hour show, and included one of my favorite songs, Badlands;

Lights out tonight, trouble in the heartland.
Got a head-on collision, smashin in my guts man.
Im caught in a crossfire that I don't understand.
But there's one thing I know for sure girl:
I don't give a damn for the same old played out scenes
I don't give a damn for just the in-betweens.
Honey I want the heart, I want the soul, I want control right now.
You better listen to me baby:
Talk about a dream; try to make it real.
You wake up in the night with a fear so real.
You spend your life waiting for a moment that just don't come.
Well don't waste your time waiting

Badlands you gotta live it every day
Let the broken hearts stand
As the price youve gotta pay
Well keep pushin till it's understood
And these badlands start treating us good

Workin in the field till you get your back burned
Workin `neath the wheels till you get your facts learned.
Baby I got my facts learned real good right now.
You better get it straight darling:
Poor men wanna be rich, rich men wanna be kings,
And a king aint satisfied till he rules everything.
I wanna go out tonight, I wanna find out what I got.
Now I believe in the love that you gave me.
I believe in the faith that could save me.
I believe in the hope and I pray that some day it
Will raise me above these

Badlands...

For the ones who had a notion, a notion deep inside
That it aint no sin to be glad you're alive.
I wanna find one face that aint looking through me
I wanna find one place, I wanna spit in the face of these

Badlands...

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Former Justice Penny White, former Judge Joe Riley and I are presenting our annual seminar program for civil trial lawyers in Nashville this week.  Learn more and register here.

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F. Chris Cawood v. Linda Booth, et al., E2007-02537-SC-R11-CV,  (Tenn. Ct. App. Nov. 25, 2008) has a set of facts you don't run into every day or, at least, I hope you don't run into everyday.   Here is the description of the case from the opinion of the Tennessee Court of Appeals.

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A little over a week ago I wrote this post about the general rule in the law of torts that one person does not have a duty to rescue another from harm.  To be sure, there are exceptions to that general rule, but the fact remains that this is one area of tort law in where the duty imposed by law is generally less than that imposed by the moral code of most people.

This post from the Volokh Conspiracy notes that some states impose a duty to rescue crime victims or report crimes.  The 10 states listed by Volokh with "duty to rescue" statutes are California, Florida, Hawaii, Massachusetts, Minnesota, Ohio, Rhode Island, Vermont, Washington and Wisconsin. Most of the statutes, however, impose only a very limited to duty to call the police if you witness a serious crime such as murder or rape, and can summon help without endangering yourself.  Vermont  imposes the highest level of responsibility by requiring assistance to the victim.

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 Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Here are the topics we are offering this year:

Tort Law / Comparative Fault – John Day
John's review of the most recent tort and comparative fault opinions will give you an up-to-the-minute picture of the current state of the law in this practice area. John will offer an analysis of emerging trends, and how those trends can (and will) affect your practice going forward.

U.S. Supreme Court Review – Joe Riley
Joe reviews the significant U.S. Supreme Court decisions issued during the 2008 – 09 term. What is their significance to your practice? What can we expect in the future from the court? What appears to be the judicial philosophy of the various justices?

Mediation Tactics – Joe Riley
Mediation is rapidly becoming the preferred and most efficient method for resolving civil disputes. Joe provides some basic and other lesser known tips for successful mediation. Because Joe has mediated many civil cases, his perspective provides invaluable advice for the practitioner.

Who Said It and Why? Tips for Admitting and Excluding Hearsay – Penny White
Penny will lead a discussion about common errors in applying the hearsay rule and its many exceptions in civil and criminal cases, and will share tips for admitting and excluding hearsay.

Significant Recent Cases/Legislation – Penny White, Joe Riley
Penny reviews the significant decisions in the areas of employment law, family law, workers' compensation, estates and property. Joe summarizes recently enacted state legislation

Trial Simulation: Thorny Evidence Issues – Penny White, Joe Riley
The presenters use a simulated trial to raise various evidentiary issues. Throughout the testimony in a hypothetical trial, counsel raise various evidentiary objections. Joe and Penny lead the audience in a discussion of the appropriate objections and then provide insight into the likely resolution by trial and appellate judges.

Ethics: Tennessee's Rules of Professional Conduct – Penny White, Joe Riley
In the first three-hour session, Penny and Joe separately present a variety of timely ethics/professionalism topics of interest to the practicing attorney. These interactive presentations are based upon hypothetical scenarios that require resolution through the application of the Rules of Professional Conduct.

Ethics: The Questions We Want Answered – Penny White, Joe Riley
In the final hour, Penny and Joe give you the opportunity to submit the most difficult ethics/professionalism questions you want answered. They will also explore previously submitted questions from inquisitive lawyers from other parts of the state. This is an interactive session with possible solutions to these dilemmas being provided by other participants at the seminar.

Learn more about the program here.
 

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Focus groups are invaluable tools for exploring key issues in your case before taking it into the courtroom. Register for Case Plus: The Next Step in Developing and Testing Your Trial Story to benefit from not one, but three focus groups—now with extended focus group time spent on your case. And you can bring a second member of your trial team from your firm at no additional cost.

Case Plus Helps at Every Stage of Your Case:

• Explore the biases and beliefs surrounding your case in order to develop a discovery plan and case themes

• Determine the strengths and weaknesses of your case in order to 
develop your trial strategy

• Get feedback on your trial story

• Find the trouble spots in your trial story before you go to trial

This seminar is open only to AAJ plaintiff attorneys (Regular, Life, Sustaining, President’s Club, and Leaders Forum).  Go to www.justice.org to learn more.

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The November 2009 edition of the Tennessee Trial Law Report is in the mail.

This edition includes a summary of 16 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between September 15 and October 15, 2009. The newsletter totals 38 pages, including 16 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article is “Examination of Witnesses – Part 1;” and (b) a summary of the status of 9 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription at www.triallawreport.com. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.

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Houston trial lawyer John O'Quinn died in a motor vehicle wreck earlier today.  This article provides a lot of information about this very interesting man.

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I participated in a panel discussion at a local high school a week or so ago.  The attendees were high school students and their parents.  The other participants on the panel included a local juvenile court judge, a police officer, and an assistant district attorney.

Some of the questions included the potential liability of parents for furnishing alcohol to minors and various, easy-to-imagine spin-off questions.  One question was the liability of an adult who comes upon a drunken minor but did not nothing to furnish alcohol to the minor, did not own or occupy the site where the alcohol was given to the minor, and had no relationship with the minor.  If the adult simply ignores the minor and watches him get into a car and drive away, does the adult have any liability if the minor dies in a one-car wreck a block down the road?

This is a moral and a legal question - and I informed the group that I would leave  the moral question to" pillow test."  Legally, there is no liability on the adult because there is no duty on the adult to rescue another from the potential for harm or to otherwise come to the aid of a stranger.  We had a nice discussion about it, and also about the consequences of deciding to lend aid under such circumstances.

Then, last weekend, I came across a paper that does a fine job explaining the entire concept.  The article,   "Understanding the Absence of Duty to Reasonably Rescue in American Tort Law" was written by Marin Roger Scordato, a professor at the Columbus School of Law, and published in the Tulane Law Review.  Here is an abstract of the article:

The absence in American tort law of a duty to reasonably aid a stranger in peril is
perplexing. It is an odd gap in the otherwise nearly pervasive presence of a duty of reasonable care in the modern law of negligence. It utterly fails to accurately articulate our conventional sense of morality and appropriate social behavior. It stands in stark contrast to the treatment of this issue throughout the rest of the world. It is a rule of tort law for which very few commentators have had a kind word.

This Article sets forth a spirited defense of the traditional no-duty-to-rescue rule. It offers a thoroughgoing justification for the doctrine and establishes an understanding of the practical wisdom behind its seemingly amoral veneer. It is a unique attempt in the existing legal literature to develop a clear and unapologetic rationale for this much maligned aspect of tort law.

The argument begins by analyzing the likely benefits available from the adoption of a tort duty to affirmatively aid. It then identifies and describes the probable costs that would accompany such a rule, including the lowering of the quality of rescue effort experienced by those in peril, the discounting of altruism, greater intrusiveness of negligence regulation, an increased risk of harm to rescuers, the creation of a disincentive to cooperate in subsequent investigations and a deterrence to provide delayed aid. In addition, the many problems attendant to the actual operation of a duty to affirmatively aid within the negligence cause of action are considered.

The question of whether a limited version of a duty to affirmatively aid that would apply only to persons who possess special expertise or experience in providing aid is also analyzed, as is the role of Good Samaritan statutes in creating appropriate incentives for such individuals. Finally, the characteristics of a criminal law duty to rescue are compared to those of a tort law duty and both the relative desirability of a criminal law duty and the superfluous nature of a subsequent tort law duty are demonstrated.

Download the article here.

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Rush Limbaugh is a gifted entertainer who has a propensity to say some pretty ridiculous things. That being said, it is pretty hard to be on the radio for three hours per day and not say some ridiculous things, especially when you have to appease an audience that feeds off of ridiculous things.

On Saturday Rush stepped in it again.  I am an avid reader of the Wall Street Journal, and the Saturday edition included an op-ed piece under Rush's by-line complaining that he was kicked out of the group that was attempting to buy the St. Louis Rams.  What caused his expulsion?   You guessed it - the liberal media and its normal sources, including Al Sharpton.  Here is what Rush said about Sharpton:

In 1998 Mr. Sharpton was found guilty of defamation and ordered to pay $65,000 for falsely accusing a New York prosecutor of rape in the 1987 Tawana Brawley case. He also played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews "diamond merchants") and 1995 Freddie's Fashion Mart riot.

He added these words at the end of the op-ed piece:

There is a contempt in the news business, including the sportswriter community, for conservatives that reflects the blind hatred espoused by Messrs. Sharpton and Jackson. "Racism" is too often their sledgehammer.

Sharpton did not appreciate these words - and denies that he played any role in the riots.  Here is what the AP reported:

Sharpton was not present for or involved in the rioting in Brooklyn's Crown Heights section in August 1991, during which hundreds of blacks were involved in attacks on the neighborhood's Jewish residents. He did deliver a eulogy at the funeral of the youth whose death in a traffic accident triggered the violence, but that didn't happen until the violence ended.

Sharpton also wasn't present on Dec. 8, 1995, when a lone, black gunman burst into Freddie's Fashion Mart, a Jewish-owned business in Harlem, started shooting and set the building on fire. Seven people died. There was no riot.

Sharpton's organization had, like other black groups, been involved in picketing the business over its plans to expand into space occupied by a black-owned business, but he said he couldn't be blamed for the madman's rampage.

Sharpton says that he  is going to sue Rush for defamation if he (Al) doesn't receive an apology. Sharpton is almost certainly a public figure and, in fact, his feelings would be hurt if he was not. Thus, he would have to prove that Rush acted with actual malice to prove a defamation claim.  This is a difficult burden, but if anyone can be found of speaking with malice it is Rush:  it oozes from almost every word he speaks.  

So, will Rush apologize?  He will support cap-and-trade legislation before he apologizes to Sharpton.  Will Sharpton file suit?  My guess is that he will.  Sharpton clearly enjoys a good, public  fight, and he will view this as his opportunity to attempt to weaken Rush.  That will not occur.  Those who love Rush could care less if he had his facts wrong about Sharpton.   Those that don't care for  him have more important things to do than think about Sharpton's lawsuit.  

That being said, I would find it interesting to know what research Rush did before making his accusations against Sharpton.  If the AP article is correct, Rush has some explaining to do.

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The October 2009 edition of the Tennessee Trial Law Report  is in the mail.

This edition includes a summary of 17 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between August 15 and September 15, 2009. The newsletter totals 35 pages, including 17 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article concerns the "Rule;” and (b) a summary of the status of 11 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription here. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.

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The Tennessee Attorney General's Office has issued an Opinion that provides that "Tenn. Code Ann. § 65-12-108 does not require a train engine operator to blow a train’s whistle or horn before crossing a private drive.  Tenn. Code Ann. § 65-12-108 only requires that a train engine operator blow a whistle or horn at public railway crossings."

The Opinion references a recent decision from the federal court in East Tennessee:

In Artrip v. Norfolk Southern Railway Company, No. 2:08-CV-200, 2009 WL 152482
(E.D. Tenn. Jan. 22, 2009), the United States District Court for the Eastern District of Tennessee relied on Tennessee state law in holding that there is no requirement for a train engineer to sound a whistle when approaching a private railroad crossing. In Artrip, the plaintiff brought a claim against Norfolk Southern Railway Company after the decedent was struck and killed at a private railroad crossing in Sullivan County, Tennessee. Id. at *1. The plaintiff alleged that the train operator’s failure to sound a whistle warning before crossing the private drive was an act of negligence. Id. at *3. However, the District Court found no merit in plaintiff’s allegations of negligence, concluding that “although the locomotive did not blow its whistle, there was no requirement that it do so at a private crossing.” Id. at *13 (citing 49 C.F.R. § 222.25 and Tenn. Code Ann. § 65-12-108(1)). Summary judgment was granted in favor of the train operator, and the plaintiff’s claims were dismissed. Id. at *15.

Obviously, the Attorney General agreed with the decision of the federal judge. Read Opinion 09-161 here.

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 The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation.  Set forth below is my letter to the Court that addresses one phrase in the proposed rule.  NOTE:  this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.

I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court.  I respectfully request that the Court remove the phrase “In the face of society's increasing litigiousness...” from the beginning of Section 1.03.  This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.

Court filings in civil court of almost every type have decreased in Tennessee over the last three years.   According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256.  The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867.   Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06.  In 2007-08 there were a total of 843 of those applications.  The data for 2008-09 is not yet publically available.

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For decades people have spread false or half-true stories about lawsuits.  Here is the latest one I heard the other day on a talk radio show:

A prisoner filed a $3M lawsuit alleging that a prison guard forced him to rub his bologna sandwich on his (the prisoner's) penis and then forced the prisoner to eat it.   This is offered as yet another example of a litigation system run amok.

True?  In part.  Yes, a prisoner has filed a $3M civil rights lawsuit, seeking $1M in compensatory damages and the balance in punitive damages.  It is true that it is alleged that two deputies made a prisoner rub a bologna sandwich against his penis.  

But The Columbus Dispatch reports that the plaintiff is a different prisoner who had been given the sandwich by the deputies after it had been rubbed against the penis.  The deputies also allegedly knew that the "rubbing" prisoner  was in the medical seclusion ward with the HIV virus and Hepatitis C. One of the deputies has admitted to taking a photograph of some portion of this incident on his cell phone.

Both deputies have been fired.

Now, unless the plaintiff contracted either disease I sincerely doubt that this case is worth $1M in compensatory damages.  And none of the allegations may be true - I don't know.

But no one can look at the allegations of this lawsuit and say it is much ado about nothing.  If true, the conduct by the deputies is outrageous.   I do not know enough about civil rights litigation to be able to comment of the legal merits of the allegations against the other defendants, but I don't think that the talk radio host I was listening to knew much about civil rights law either.

So, when you are at a party and someone attempts to give this story as another example of how the civil litigation system is broken, tell them the rest of the story.

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 Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars.  This two-day,  15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients. 

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4,  Memphis on December 10 and 11, and Knoxville on December 17 and 18. 

Here are the topics we are offering this year:

Tort Law / Comparative Fault – John Day

John's review of the most recent tort and comparative fault opinions will give you an up-to-the-minute picture of the current state of the law in this practice area. John will offer an analysis of emerging trends, and how those trends can (and will) affect your practice going forward.

U.S. Supreme Court Review – Joe Riley

Joe reviews the significant U.S. Supreme Court decisions issued during the 2008 – 09 term. What is their significance to your practice? What can we expect in the future from the court? What appears to be the judicial philosophy of the various justices?

Mediation Tactics – Joe Riley

Mediation is rapidly becoming the preferred and most efficient method for resolving civil disputes. Joe provides some basic and other lesser known tips for successful mediation. Because Joe has mediated many civil cases, his perspective provides invaluable advice for the practitioner.

Who Said It and Why? Tips for Admitting and Excluding Hearsay – Penny White

Penny will lead a discussion about common errors in applying the hearsay rule and its many exceptions in civil and criminal cases, and will share tips for admitting and excluding hearsay.

Significant Recent Cases/Legislation – Penny White, Joe Riley

Penny reviews the significant decisions in the areas of employment law, family law, workers' compensation, estates and property. Joe summarizes recently enacted state legislation.

Trial Simulation: Thorny Evidence Issues – Penny White, Joe Riley

The presenters use a simulated trial to raise various evidentiary issues. Throughout the testimony in a hypothetical trial, counsel raise various evidentiary objections. Joe and Penny lead the audience in a discussion of the appropriate objections and then provide insight into the likely resolution by trial and appellate judges.

Ethics: Tennessee's Rules of Professional Conduct – Penny White, Joe Riley

In the first three-hour session, Penny and Joe separately present a variety of timely ethics/professionalism topics of interest to the practicing attorney. These interactive presentations are based upon hypothetical scenarios that require resolution through the application of the Rules of Professional Conduct.

Ethics: The Questions We Want Answered – Penny White, Joe Riley

In the final hour, Penny and Joe give you the opportunity to submit the most difficult ethics/professionalism questions you want answered. They will also explore previously submitted questions from inquisitive lawyers from other parts of the state. This is an interactive session with possible solutions to these dilemmas being provided by other participants at the seminar.

Learn more about the program here.  Register here.

This is our sixth year of offering CLE as a team.  We hope to see you at our program.

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Nashville trial lawyer John T. Conners, Jr. died yesterday in his home in West Meade.  He would have turned 90 in March 2010.    He was a name-partner at Boult Cummings Conners & Berry in Nashville and practiced law over 50 years.. 

To say that John Conners was an excellent lawyer is an understatement.   He was a living legend in the Bar at the time I was admitted in 1981 and joined his firm.  He remains a legend to this day.

I believe the key to Mr. Conners' success in the courtroom was his preparation.  He left no stone unturned.  He did not sit in his office and practice law - he investigated his own cases and was unafraid to get his shoes dirty.  He prepared hours and hours for every deposition.  He would write out his opening statements and closing arguments three, four, or five times, revising and improving it each time.  And then he would deliver it - from memory - flawlessly.  His directs and crosses were done the same way - revision after revision after revision - and then conducted from memory.   He dominated the courtroom.  

Mr. Conners, a Fellow of the American College of Trial Lawyers, enjoyed  the utmost respect from the Defense Bar.   They knew  that he could be trusted.  Always.  He fought hard, but fair.  

Mr. Conners was the master of straight talk to clients.  He gave advice - and expected his clients to take it.  He was not afraid to express his opinion.   He was not afraid to tell clients that they were wrong.   He was a gentleman.

I had the good fortune to be trained by Mr. Conners.  I spent 11 1/2 years working for him, and I say without hesitation that what I know about the lawyer's craft I learned from him.  What  I did not learn is a result of me being a poor student and is no reflection either on his knowledge or his ability to share it.  There is rarely a day that passes that I do not come across a difficult problem in one or more of my cases and ask myself how he would address it.  

He will be missed.

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Last week I filed a post on the new members of the Judicial Selection Commission.  Today, the appointees to the Judicial Performance Evaluation Commission were announced.

The Judicial Performance Evaluation Commission, which replaces the Judicial Evaluation Commission, evaluates the performance of the appellate level judges who are up for re-election. Prior to the election, the commission will complete a thorough review of each judge’s performance and make a recommendation to either retain or replace each judge. These recommendations are placed in newspapers throughout the state to inform voters prior to the election.

The appointees:

The Judicial Council appointed the following members:
E. Riley Anderson of Knoxville – former Supreme Court justice
Jeffrey S. Bivins of Franklin – Circuit Court judge
John T. Fowlkes of Memphis – Criminal Court judge
Amy Reedy of Athens – Criminal Court judge
Renata Soto of Nashville – co-founder and executive director, Conexion Americas

Lt. Gov. Ramsey appointed the following members:
John Chase Rambo of Jonesborough – private attorney
Michael E Tant of Franklin – executive vice president, W.Z. Baumgartner & Associates, Inc.

Speaker Williams appointed the following members:
John Day of Brentwood – founding partner, Day & Blair
Henrietta Grant of Knoxville – retired educator

I look forward to the opportunity to serve on this Commission and appreciate Speaker Williams' confidence in me.  I served on the Judicial Evaluation Commission as an appointee of former Lt. Gov. John S. Wilder and found it to be both an educational and a rewarding experience.

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The September 2009 edition of the Tennessee Trial Law Report is in the mail.

The lazy days of summer are upon us - this edition includes a summary of just 10 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between July 15 and August 15, 2009. (This is about 1/2 of the normal volume of decisions released in a given month.) The newsletter totals 34 pages, including 16 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article is “Opening Statements and Closing Arguments;” and (b) a summary of the status of 12 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription at www.triallawreport.com. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.
 

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Lt. Governor Ron Ramsey appointed the following people:

1. Miles Burdine, President and CEO of the Kingsport Area Chamber of Commerce
2. Christopher Campbell, a Memphis attorney
3. Christopher Clem, a Chattanooga attorney
4. William Jenkins, Jr., a Dyersburg attorney
5. Teresa Lee, Senior VP and CLO for Eastman Chemical in Kingsport
6. Thomas Lawless, a Nashville lawyer
7. Jack Lowery, a Lebanon lawyer
8. William Young, GC of BCBS in Chattanooga

Speaker Williams appointed the following people:

1. David Bautista, an attorney and ETSU professor
2. Mary Helen Beard, a lawyer with Fed Ex in Memphis
3. Ana Escobar, a Nashville attorney
4. Russell Johnson, DA in Loudon County
5. Ed Martindale, a Jackson attorney
6. Scott Sims, a Nashville attorney
7. Denise Stapleton, a Morristown attorney
8. Barry Ward, a Memphis attorney

The speakers jointly appointed Verna Anne Wyatt of Nashville, the ED of the group You Have the Power, a crime victims advocacy group.

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Last week I received a letter informing me that I had been selected  for inclusion in the 2010 edition of Best Lawyers in America.   I have been fortunate to have been included among this distinguished group of lawyers since 1993.

This year I have been listed in the specialties of Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice Law, Personal Injury Litigation, and Product Liability Litigation.

Best Lawyers surveys lawyers to determine who should be included in the publication. Thus, I fully realize that I would not be included in this book if it were not for the votes I received from my fellow lawyers, many of whom  deserve equal or even greater recognition for their service to their clients and to the profession.  I also realize that I would not be a part of this publication without the wonderful support I receive from every member of our firm, each of whom works diligently every day to serve our clients.

Some of you may be surprised to learn that our firm does commercial litigation.  Well, we do.  We learned many years ago that those involved in commercial disputes need lawyers with trial experience to help them with complex cases, particularly those that may be tried before a jury.  My undergraduate degree is in business and economics, and I ran a business with 26 employees at the age of 19, so I enjoy the issues that these cases present.  

Once again, thank you to all of those who were kind enough to help me become listed in Best Lawyers. 

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Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers.  As I have said in the last six posts,  you can read about additional changes in the law under the Legislation 2009 category.

Public Chapter 206  changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101  et seq, to   specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act.

I believe that this legislation is a result of a case our firm handled against such an organization in East Tennessee earlier this year.  We argued that the entity was not covered by the Act (and therefore the damage caps did not apply) because the type of entity was not specifically mentioned in the Act.  I predicated at the time we identified the issue that a legislative change would be forthcoming, and this is it.

Click at the link to read Public Acts, 2009 Public Chapter 206.

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Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars.  This two-day,  15-hour is designed for Tennessee lawyers who do civil litigation and who are looking for substantive continuing legal education that will help them better serve their clients. 

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4,  Memphis on December 10 and 11, and Knoxville on December 17 and 18. 

Here are the topics we are offering this year:

Tort Law / Comparative Fault – John Day

John's review of the most recent tort and comparative fault opinions will give you an up-to-the-minute picture of the current state of the law in this practice area. John will offer an analysis of emerging trends, and how those trends can (and will) affect your practice going forward.

U.S. Supreme Court Review – Joe Riley

Joe reviews the significant U.S. Supreme Court decisions issued during the 2008 – 09 term. What is their significance to your practice? What can we expect in the future from the court? What appears to be the judicial philosophy of the various justices?

Mediation Tactics – Joe Riley

Mediation is rapidly becoming the preferred and most efficient method for resolving civil disputes. Joe provides some basic and other lesser known tips for successful mediation. Because Joe has mediated many civil cases, his perspective provides invaluable advice for the practitioner.

Who Said It and Why? Tips for Admitting and Excluding Hearsay – Penny White

Penny will lead a discussion about common errors in applying the hearsay rule and its many exceptions in civil and criminal cases, and will share tips for admitting and excluding hearsay.

Significant Recent Cases/Legislation – Penny White, Joe Riley

Penny reviews the significant decisions in the areas of employment law, family law, workers' compensation, estates and property. Joe summarizes recently enacted state legislation.

Trial Simulation: Thorny Evidence Issues – Penny White, Joe Riley

The presenters use a simulated trial to raise various evidentiary issues. Throughout the testimony in a hypothetical trial, counsel raise various evidentiary objections. Joe and Penny lead the audience in a discussion of the appropriate objections and then provide insight into the likely resolution by trial and appellate judges.

Ethics: Tennessee's Rules of Professional Conduct – Penny White, Joe Riley

In the first three-hour session, Penny and Joe separately present a variety of timely ethics/professionalism topics of interest to the practicing attorney. These interactive presentations are based upon hypothetical scenarios that require resolution through the application of the Rules of Professional Conduct.

Ethics: The Questions We Want Answered – Penny White, Joe Riley

In the final hour, Penny and Joe give you the opportunity to submit the most difficult ethics/professionalism questions you want answered. They will also explore previously submitted questions from inquisitive lawyers from other parts of the state. This is an interactive session with possible solutions to these dilemmas being provided by other participants at the seminar.

Learn more about the program here.  Register here.

This is our sixth year of offering CLE as a team.  We hope to see you at our program.

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This is the fifth in a series of posts about changes in Tennessee statutory law of interest to tort lawyers.   For other changes click on the Legislation 2009 category.

Tennessee has a "Ski Area Safety and Liability Act" codified at TCA Section 68-114-101 et seq.  Public Chapter 85 changes the definition of skier to include "any person present in a ski area for the purpose of engaging in the sport of skiing, Nordic, freestyle, or other types of ski jumping, and who is using skis, or a sled, tube, or snowboard."  It also increases the minimum insurance limits for each "ski area operator responsible for a passenger tramway" to $1,000,000.

Click on the link to read Public Acts, 2009 Public Chapter 85.

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As you would expect, the Tennessee General Assembly is not particularly fond of drug dealers.  But did you know that the General Assemby had passed what they call the "Drug Dealer Liability Act?"

The Act, codified at TCA 29-38-101 et seq, permits the recovery of damages caused by drug dealers.   We just used this Act to add an additional cause of action against a man who we alleged engaged in inappropriate conduct with  two pre-teen females and from time to time used a drug to help accomplish his actions.   The use of the Act was important because (a) it gave us a claim for attorney's fees and (b) it provides for prejudgment attachment of assets of the defendant.  

The Act contains several sections, but this is the section that creates the cause of action, identifies who can file suit, and states what damages can be recovered.

29-38-106. Persons allowed to bring an action for damages — Persons against whom damages may be sought — What damages may be sought. —

(a) One (1) or more of the following persons may bring an action for damages caused by an individual's use of an illegal drug:

(1) A parent, legal guardian, child, spouse, or sibling of the individual drug user;

(2) An individual who was exposed to an illegal drug in utero;

(3) An employer of the individual drug user;

(4) A medical facility, insurer, governmental entity, employer, or other entity that funds a drug treatment program or employee assistance program for the individual drug user, or that otherwise expended money on behalf of the individual drug user; or

(5) A person injured as a result of the willful, reckless, or negligent actions of an individual drug user.

(b) A person entitled to bring an action under this section may seek damages from one (1) or more of the following:

(1) A person who knowingly distributed, or knowingly participated in the chain of distribution of, an illegal drug that was actually used by the individual drug user;

(2) A person who knowingly participated in the illegal drug market, if:

(A) The place of illegal drug activity by the individual drug user is within the illegal drug market target community of the defendant;

(B) The defendant's participation in the illegal drug market was connected with the same type of illegal drug used by the individual drug user; and

(C) The defendant participated in the illegal drug market at any time during the individual drug user's period of illegal drug use.

(c) A person entitled to bring an action under this section may recover all of the following damages:

(1) Economic damages, including, but not limited to, the cost of treatment and rehabilitation, medical expenses, loss of economic or educational potential, loss of productivity, absenteeism, support expenses, accidents or injury, and any other pecuniary loss proximately caused by the illegal drug use;

(2) Noneconomic damages, including, but not limited to, physical and emotional pain, suffering, physical impairment, emotional distress, mental anguish, disfigurement, loss of enjoyment, loss of companionship, services and consortium, and other nonpecuniary losses proximately caused by an individual's use of an illegal drug;

(3) Exemplary damages;

(4) Reasonable attorney fees; and

(5) Costs of suit, including, but not limited to, reasonable expenses for expert testimony.

One can see there are multiple ways that this Act can be used to help certain of our clients.   Note that the act covers injuries to third parties.  So, for instance, if your client is hurt in a car or truck wreck by a person using an illegal drug your client has a cause of action up the chain of distribution of the illegal drug.

Now, before someone writes and tells me what a fool I am let me hasten to add I can see all sorts of issues arising from a suit against a drug dealer, not the least of which is the personal safety of the lawyer bringing such a claim.  The fact remains, however, that the Act is yet another arrow in the trial lawyer's quiver and, as we demonstrated, has uses beyond those that are  immediately obvious.

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Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars.  This two-day,  15-hour is designed for Tennessee lawyers who do civil litigation. 

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4,  Memphis on December 10 and 11, and Knoxville on December 17 and 18. 

Learn more about the program here.  Register here.

This is our sixth year of offering CLE as a team.  We hope to see you at our program.

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The American Conservative Union, the nation's oldest conservative lobbying organization, has firmly held core beliefs.  Those core beliefs are apparently for sale to the highest bidder, even if the highest bidder is on the opposite side of the issue than the other potential bidder.

Credibility free-fall.

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David Mills, appellate lawyer and cartoonist from Ohio, supplied the cartoon.  A reader supplied the caption.  In fact, lots of readers suggested captions, and David choose this one.

I must admit that I was a fan of a caption suggested by Kpawss ("Surprisingly, a lineal descendant appeared during probate.") but I certainly cannot disagree with David's choice  written by J. Whitney.

Thanks, David, for sharing your work with us.  See more of David's work at Courtoons.

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Nashville is mourning the death of Steve McNair, former quarterback of the Tennessee Titans.

McNair was murdered during the early morning hours of Saturday, July 4.  It is not completely certain who murdered him, but news reports indicate that the police are not looking for suspects and appear to be exploring whether McNair's 20-year old girlfriend, Sahel Kazemi, killed McNair and then shot herself in the head.  Apparently, the gun was found under Kazemi's body.

USA Today has reported that the handgun recovered at the scene was recently purchased by Kazemi.  The Tennessean has a similar story.  Federal law prohibits those under 21 from purchasing a handgun from a licensed dealer.  The identity of the gun seller has not been released to the public (if it is even known).

Is there a tort case here?  Yes - whoever killed McNair committed battery under Tennessee law.  Battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact.   Murder definitely qualifies.

So, whoever killed McNair can be sued for battery.  The problem with lawsuits in intentional torts cases is the collectability issue - murderers frequently don't have assets and liability insurance (from homeowner's or apartment dweller's policies) does not cover intentional acts.  It would be a challenge to prove that the four shots into Steve's body were the result of a negligent act (unless the murder weapon was an automatic -which is highly unlikely).

Is there a cause of action against the seller of the handgun?  Perhaps.  A violation of federal law may give rise to negligence per se.  Many years ago my mentor and I sued a company that sold a rifle to a woman who went home and killed herself.  The seller violated federal law by selling the gun to a person who had been in a mental institution (she checked the have-you-been-in-a-mental-institution box on the form you must complete when you buy a gun, but the store sold the gun to her anyway).  (Here is an example of  ATF Form 4473.)  We won the case at a trial in federal court, but the damages were relatively small. 

The sale of a handgun ammunition to a minor who later killed himself was held not to give rise to liability of the seller in Rains v. Bend of the River, 124 S.W.3d 580 (Tenn. Ct. App. 2003).  The Rains court did not decide the issue of whether it would apply negligence per se,  dismissing the case instead on causation grounds.

Thus,  (a) if a gun was illegally sold to a minor in Tennessee; (b) if a minor used that gun to commit a murder in Tennessee;  and (c) if a wrongful death suit was filed in Tennessee arising out of that murder Tennessee law would be examined to determine whether the sale of the handgun to the minor was negligence per se.   According to Rains, the factors taken into account include 

(a) whether the plaintiff belongs to the class of persons the statute was designed to protect; ... (b) whether the plaintiff's injury is of the type that the statute was designed to prevent.  ... [c] whether the statute is the sole source of the defendant's duty to the plaintiff; [d] whether the statute clearly defines the prohibited or required conduct; [e] whether the statute would impose liability without fault; [f] whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation; and [g] whether the plaintiff's injury is a direct or indirect result of the violation of the statute.  [Citations omitted.]

If the gun was sold to a minor by someone other than a licensed dealer a cause of action for negligent entrustment should be evaluated.

In summary, there is much to be learned about how Steve McNair came to be shot and who shot him before one can evaluate what civil liability, if any, arises from the death.

UPDATE ON JULY 6, 2009 AT 9:30 P.M.

The Metropolitan Police Department has now revealed that Ms. Kazemi bought the handgun found at the scene on Thursday night before the Saturday murder.   The gun was purchased from a private owner.  The identity of the private seller has not been released.

It is not illegal for a private citizen to sell a weapon to a 20 year old in Tennessee unless the purchaser is intoxicated.  T.C.A. Sec. 39-17-1303.

UPDATE #2 ON JULY 7 AT 4:55 A.M.

There is a more complete story today about Ms. Kazemi purchasing the weapon.  The story indicates that '[t]he woman was not old enough to legally carry a handgun or purchase one from a gun dealer. The person who sold the gun to Kazemi is not in custody and may not be charged because the seller may not have known Kazemi was under 21, police said."   The statements about the law are not quite correct.

T.C.A. 37-17-1303 prohibits the sale of handguns to minors.  It is also illegal to sell a gun to someone who is intoxicated.

However, under Tennessee law, a minor is someone who is under 18 (except in cases involving  alcohol).  T.C.A. 1-3-105(16).  Similarly, it is legal for a person age 18 and over to possess a handgun in Tennessee.  T.C.A. Sec. 9-17-1319, although they cannot obtain a handgun carry permit.   T.C.A. Sec. 39-17-1351. 

Thus,  it is legal for a private individual to sell a handgun to a person between the age of 18 and 21.   No background check is required for the private sale.  T.C.A. Sec. 39-17-1316(m)(3).

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Advice to Governor Mark Sanford:  Remember the words of Elmer Fudd.  "Shhh. Be vewy, vewy quiet." 

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Technical glitches added a couple days to the process,  but Rob and the folks at LexBlog completed the transition to the new format yesterday.  I hope you enjoy it.

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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.

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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.    

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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.

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The June 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Tuesday, June 2.   The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner.

This edition includes a summary of 16 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between March 15 and April 15, 2009. The newsletter totals 39 pages, including 19 pages containing the full-text (in addition to our summary) of the most important opinion issued last month.

The newsletter also includes (a) Part 3 of my new, four-part article of the law of jury selection; and (b) a summary of the status of 13 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription at www.triallawreport.com. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.

And, if you have no idea what this newsletter is, you can download a free copy of the May 2009 edition at www.triallawreport.com.

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Last night at about 10:45 EDT I had to occasion to start counting blessings.  My advancing age means I do this more and more, and it also causes me to realize that I should have counted those blessings more frequently in years past .  I will tell you what gave rise to the time for reflection in a moment, but permit to re-count a few of the blessings of yesterday:

• I woke up at 5:30 EDT in the beautiful Mayflower Hotel in our Nation's Capitol, where I am attending the 86th Annual Meeting of the American Law Institute.
• My health remains good enough to permit me a good early morning workout.
• I heard a wonderful speech by Judge Pierre N. Leval, Judge of he US Court of Appeals, Second Circuit, about ALI and its role in the development of the law.
• I heard a moving speech by Nicholas deB. Katzenbach, Attorney General under President Johnson, who forcefully explained his view of the role of lawyers to their clients and how the lawyers who advised President Bush on torture did not fulfill that role.  I thought about how much my friend Howard Vogel, an ALI member from Knoxville,  would have enjoyed the presentation - one he missed only because he has not one but two grandchildren arriving any day now.
• I watched the discussion of Tentative Draft No. 6 of the Restatement of the Law Third - Torts: Liability for Physical and Emotional Harm.  Yesterday's discussion involved duty of land possessors.  This is the work of Bill Powers (President, University of Texas),  Mike Green (Wake Forest School of Law) and the late Gary Schwartz (UCLA).  Bill and Mike has worked on the Restatement Third for fifteen years and their work is almost complete.  To understand the history-making nature of their work, the Reporter for the Restatement (Second) of Torts was a a guy named William Prosser.
• I had lunch with Bob Peck, the lawyer who argued the Williams case before the SCOTUS this year - and won.  Bill Wagner, lawyer extraordinaire from Tampa, was there too (and picked up the tab) as was Vincent Johnson (law professor - St. Mary's).
• I  listened to the interesting discussion of Tentative Draft No. 2 of the Restatement of the Law Third on Employment Law.
• I received a telephone call from Angela at  the office of my friend Congressman Bruce Bailey (D-Iowa) informing me that (a) no, the Congressman could not join me for dinner Monday night as I had requested  but (b) I could join him at the Bruce Springsteen concert instead.
• I stood on the steps of the SCOTUS Building, looked at the Capitol, and thought about how fortunate I was to be a lawyer and live in such a wonderful country.  Call me a sap, but there is something about DC that is still very moving to me, despite many visits over many years.
• I saw Bruce with Bruce from Suite 368 at Verizon Center - a wonderful show from a man whose music causes one to reflect on his blessings.
• I got the chance to talk about some public policy issues with Bruce Braley, and it was refreshing to see a man in the position to make change be so passionate about doing so. 
• My 17-year old daughter thought the Bruce-invite was neat enough to invite me to be her friend on Facebook, a privilege that I had been previously denied.  That act got her a big smile, and a Bruce t-shirt.
• My 13- year old son thought it was "cool" that his old man was seeing Bruce.  That got him a t-shirt.
• Both of those young adults are healthy, as are my wonderful wife Joy and my daughter Kate.  Are there greater blessings?

Yes, the music of the Boss causes one to count blessings, and May 18, 2009 goes down as a very blessed day, indeed. 

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The May 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Monday May 4.  The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner.

This edition includes a summary of 16 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between March 15 and April 15, 2009. The newsletter totals 43 pages, including 19 pages containing the full-text (in addition to our summary) of the most important opinion issued last month.

The newsletter also includes (a) Part 2 of my new,  four-part article of the law of jury selection; and (b) a summary of the status of 20 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription at www.triallawreport.com. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.
 

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A heartfelt thanks to Lexmonitor, a daily review of law blogs and journals, for these kind words about my post  discussing testimony by podiatrists.

Tennessee injury lawyer John Day has been blogging for years, and his posts display a keen knowledge of what makes a blog consistently readable and valuable to your readership. This post analyzes a case and provides opinion and questions for the reader – a great example of a blog post that will keep readers coming back.

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Ms. Arizona was asked a question about universal health care during  her Miss USA pageant interview    Her response reminded me of  the frequent, mindless sound bites offered by the 2008 GOP candidate for Vice President of the United States. 

Watch the video clip here.

Universal health care - I can see it from my house.

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The Wall Street Journal has been writing a series of articles about crashes of medical helicopters.  A total of 13 crashes took 29 lives in 2008.

This crashes can give rise to several potential types of claims.   The patient  has a potential claim,  assuming he or she can prove that there was negligence in the operation or maintenance of the helicopter.  Assuming that the health care providers are employed by the same entity that owns, operates and maintains the helicopter, they will be limited to a worker's compensation claim.  If a different company flies, owns, or maintains the helicopter, a lawyer should look to see whether the negligence of any of the non-employers contributed to cause the incident.  Of course, it is always possible the crash was caused by a defect in the helicopter, the failure of a replacement part, etc.

Let me hasten to add that not every crash will give rise to a lawsuit.  For example, the patient who survives a crash may not be able to prove that the crash caused an injury.  Or the family of a deceased patient may not be able to show that the patient would have survived the acute illness or trauma the resulted in the air transport of the patient in the first place.   A through investigation of each crash is necessary to determine whether the crash was caused by negligence, whether the crash caused an injury or death, and whether the wrongdoer, if any, is protected from liability by worker's compensation law or some other law.

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David Mills, lawyer and cartoonist,  held a contest to determine the best caption for this cartoon.  The winning caption appears below.

I submitted several entries, including "“Yes, I made $4M last year testifying for Ford, but that does not influence my professional judgment," and "demonstrative evidence is essential when proving loss of consortium for the single male."  I also offered this caption from the standpoint of a juror: “He makes more sense than the last three witnesses.”  I did not win, but must confess that the winning caption is much better than any of those I offered.

David has a wonderful gift.  I confess - I am jealous.

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I didn't write the Trial Lawyer's Prayer, but I wish I had. Read more of Evan Schaeffer's stuff by clicking here.

Trial Lawyer's Prayer, by Evan Schaeffer

Dear Lord: Here I am, back in Church. It's been awhile, I freely admit, and I apologize for the long string of Sunday absences, but as you know, the demands of my busy practice often require me to work all weekend, Sundays included. That's true even today, Lord, but today is a special Sunday. So special, in fact, that to skip Mass today would be malpractice, more or less, if you know what I mean, which, of course, you do.

Tomorrow is the big trial. Not only is it big, Lord, but as you know already, it's huge, the most important trial of my career to date, the trial at which my client stands to collect millions of dollars, in addition to a sizable punitive damage award. With this in mind, Lord, I come to you today at Mass. And even though I may be preoccupied from time to time, which is understandable given the magnitude of my burden, I ask that you have mercy on your humble servant, and hear his prayer.

And so, I pray as follows:

First and foremost, Lord, let your light shine on my opponent, that he may come to me tomorrow morning before the trial begins with the news that he will accept my settlement demand, which as I recall is in the neighborhood of $7 million. Of course, you shouldn't let your light shine too brightly on my opponent, if you know what I mean, which of course you do, but at least grant him the wisdom to look upon my settlement demand as worthy of his consideration, even if it isn't, so that the trial won't even be necessary, and I can begin working on my next big case.

On the other hand, Lord, if it be your plan that before I win, and cement my reputation as a trial lawyer of the first rank, my opponent and I will actually have to engage in courtroom battle, then as your humble servant I will accept your judgment. However, please keep in mind that an early settlement is certainly the better option, as it would immediately alleviate the stress on my heart, and allow me to get some much-needed sleep. You should also know, Lord, that an early settlement will free up my Sundays for at least the next month, making it no problem at all to drop by for the guitar Mass, which is my personal favorite, and which, as you know, always makes me tap my foot and occasionally, sing out loud.

But I digress. I fully understand, Lord, that speaking frankly, there is almost no chance of an early settlement, since in truth, my $7 million demand is outrageous, and my opponent would to be out of his mind to accept it. So I will assume, Lord, for purposes of this prayer only, that I am going to trial in the morning, despite the fact that it is likely to turn my hair prematurely gray, and is even now making my stomach queasy with worry and uncertainty.

And so, Lord, if we aren't able to settle the case in the morning, and if the Judge doesn't cancel the trial so that he can go fishing, which, as you know, he loves to do, and perhaps should be omnisciently compelled to do tomorrow, then I will stand before the jury and in my loudest voice, demand that they return a verdict of $7 million.

Be with me when I do that, Lord. It will take guts, and bravado, and a certain amount of recklessness on my part, especially considering the facts, which tend to favor my opponent on many points, including, as you know, all the important ones.

Be with me, Lord, not only when I attempt to use my powers of persuasion to sway the jury to an unreasonable verdict, but also during cross-examination, when I plan to make up the distance between what actually happened to my client, and what I will tell the jury actually happened. What I mean, Lord, is grant me the fortitude to be a good cross-examiner, such that I ferret out the truth when it helps my case, and skillfully conceal it when it doesn't. Aid me in making it perfectly clear to the jury why I'm right, and why my opponent is wrong, even though, as I said, you should bless him too, but not excessively, and only at the conclusion of the entire case, including any appeal, which often takes months or years.

And finally, Lord, bless my witnesses, that they will remember to stick to the story that I have so carefully prepared for them, and avoid being caught in any damaging inconsistencies, and be spared the embarrassment of sweating profusely out of nervousness, or of losing their tempers when cross-examined by my opponent, or of exposing the bad sides of their characters, thereby alienating the jury, the members of which, by the way, you should also bless, but only once they're firmly on my side.

It's a long list, Lord, but it's a big case. I hope you understand that, which, of course, you do. And now, Lord, I'm afraid it's back to work.

Amen.

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It is 1:45 AM.  I just returned to the Carolina Inn after spending a little time on Franklin Street in downtown Chapel Hill, NC.  My daughter and I had the pleasure of being in the Dean Dome and watching the Tar Heels win their 5th National Championship.  It was a great game to watch - if you were a Carolina fan.

Go Heels!

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I  just saw  these previously unreleased photos  from Life magazine that were taken on the day that Martin Luther King was shot.  Most of the photos were taken at the Lorraine Motel, the site of the murder.  They were so powerful I felt that I should share them with you.

The Lorraine Motel is now the National Civil Rights Museum.  I encourage you to spend several hours there the next time you go to Memphis.  You will find it to be an educational and moving experience.

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The April 2009 edition of the Tennessee Trial Law Report is in the mail.

This edition includes a summary of 11 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between February 15 and March 15, 2009. The newsletter totals 40 pages, including 20 pages containing the full-text (in addition to our summary) of the most important opinion issued last month. We add the full-text of the Smartt  decision because we think that it is significant enough that lawyers who seek to stay on top of tort law will want to read it in full.

The newsletter also includes (a) Part 1 of my new,  four-part article of the law of jury selection; and (b) a summary of the status of 20 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

To those of you who have already subscribed to Tennessee Trial Law Report, thank you. To those of you who have not, you can purchase a subscription at www.triallawreport.com. A substantial discount is offered to those who purchase multiple copies for a single firm. Contact Kori at kconner@dayblair.com for details.
 

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The Judicial Selection Commission and the Judicial Evaluation Commission are in a wind-up period after the General Assembly let them die last year.  (I serve on the later commission as an appointee of former Lt. Governor John S. Wilder.) Both commissions will die on June 30, 2009 unless the General Assembly takes action to provide for their continued existence.

What happens to our  existing judges if the commissions are permitted to die?  What happens when a vacancy occurs? This is what the Attorney General thinks should happen:

1. Because there would be no statutory mechanism in place for the election of appellate judges upon the expiration of the two commissions, there could not be an election for appellate court judges in either 2010 or 2014. By virtue of Article VII, §5, of the Tennessee Constitution, incumbent appellate court judges would hold over pending further action of the General Assembly to determine the manner of the election of such judges. On the other hand, expiration of the two commissions would not change the current system for electing trial court judges. Incumbent trial court judges either seeking election in 2010 to the unexpired portion of an eight year term or reelection in 2014 to a full eight-year term could stand for election by the qualified voters of their districts in August of 2010 and 2014, respectively.

2. Vacancies occurring in the appellate courts on or after July 1, 2009, could not be filled because there would be no operative statutory procedure for the filling of vacancies after June 30, 2009. Furthermore, any vacancy occurring before July 1, 2009, on which the Judicial Selection Commission had not completed its work by June 30 could not be filled. Vacancies occurring in the trial courts could only be filled at the next regular August election occurring more than 30 days after the vacancy arose. The provisions of current law directing the governor to appoint persons to fill trial court vacancies on an interim basis before the next regular August election would be inoperative, and, thus, no such appointments could occur.

3. If an incumbent appellate court judge decided not to seek reelection in 2014, there would be no operative statutory procedure to appoint a new judge. Accordingly, the incumbent appellate court judge would hold over in the office by virtue of Article VII, §5, of the Tennessee Constitution. If the incumbent appellate court judge did not desire to hold over, he could choose to resign his office. That action would create a vacancy. However, because there would be no operative statutory procedure for filling a judicial vacancy on the appellate courts, the vacancy could not be filled. By contrast, if an incumbent trial court judge decided not to seek reelection in 2014 and failed to take the steps necessary to qualify as a candidate for reelection, his successor would be elected at the August election to the eight-year term commencing September 1, 2014, by the qualified voters of the district.

Read the entirety of Opinion No. 09-43 here.

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The rules of civil procedure in Tennessee ordinarily require that a plaintiff make a "short, plain statement.."  There is an exception - Rule 9 of the TRCP requires pleading with particularity when fraud or mistake are alleged.

Nothwithstanding the general rule, some people believe that more is better.  Here is an example, from a real complaint in a real case:

Plaintiff was operating said vehicle in a safe and prudent manner, lawfully and under conditions commensurate with road and weather conditions on or about January 1, 2009, on Highway X in Some County, Tennessee, when Plaintiff fell asleep and drove off the roadway.  Upon exiting the roadway, the vehicle came to a sudden stop when it collided with a culvert along the side of the roadway.  The vehicle was equipped with airbags which did not deploy in the accident.

(The date and location of the incident has been deliberately changed.)

I thought I was familiar with the "rules of the road," but was unaware that a driver could safely, prudently, and lawfully fall asleep while driving and run off the road.

You learn something every day.

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Yesterday (March 15) was the 111th birthday of William L. Prosser, author of the torts text used by most of us in law school and Reporter for the Restatement (Second) of Torts. 

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All weekend I heard the drone of certain business reporters and various members of the Republican Party  that President Obama was responsible for the declines in the stock market over the last six weeks.

Well, the market went up 5.8% yesterday.  Should the President get the credit for that increase?

Of course not.  And he should not get the blame for what has happened the last six weeks.  The mess we now find ourselves in was created over the last thirty, forty or fifty years by a series of mistakes made by lots of people in the public and private sector.  Anyone who says that they thought  that the economic situation would materially improve in the last six weeks is a simpleton, a liar, or both..

The market losses in the first nine weeks of the year represent the opinions of stock values by the same traders who mis-valued the market over the past decade.  That is, the same irrational conduct that drove stocks up in value in the past couple decades has driven them down in value recently.  Today's low prices and yesterday's high prices are the yin yang of the market, and the real value is somewhere in between.

I am not suggesting I know what the true value of the market or any particular company is.   I wish I did - I could become very wealthy very quickly.  

What I am saying is that anyone who views the daily Dow Jones average as a daily report card on any Administration is a fool.  And, if you are  foolish enough to get on TV this past weekend and  blame the President for what has happened to the market in the last six weeks, then get on TV today and applaud him for yesterday's work.. 

What's wrong?  Cat got your tongue?

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Lawyer and cartoonist David Mills shares his craft on Courtoons.  An example:

I confess to extreme jealously of lawyers who have talent is any aspect of the world of art or music. 

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The March 2009 edition of the Tennessee Trial Law Report is in the mail.

This edition includes a summary of 20 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between January 15 and February 15, 2009.   The newsletter totals 47 pages, including 22 pages containing the full-text (in addition to our summary) of the three most important cases of the last month.  We add the full-text of selected decisions because we think that they are significant enough that lawyers who seek to stay on top of tort law will want to read them in full.

The newsletter also includes (a) Part 3 of my three-part article of the law of motions In limine;  and (b) a summary of the status of 22 cases of interest to tort lawyers that are pending before the  Supreme Court of the United States and the Supreme Court of Tennessee. 

To those of you who have already subscribed to Tennessee Trial Law Report,  thank you.  To those of you who have not, you can purchase a subscription at www.triallawreport.com.  A substantial discount is offered to those who purchase multiple copies for a single firm.  Contact Kori at kconner@dayblair.com for details.

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Here is an animation of the crash of US Airways 1549 landing in the Hudson River prepared by Scene Systems.  The simulation includes the audio from the pilot and air traffic control.

Scene Systems creates animations for litigation of all types.

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Tort lawyers have been carefully watching the tobacco lawsuit against Phillip Morris which arose out of the death of 55-year old Stuart Hess.  The Florida jury imposed liability several days ago and earlier today awarded $3M in compensatory damages and $5M in punitive damages.  Read more here.

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Today's  USA TODAY includes an interesting article titled "How much 'truth' is too much?" written by Rod Dreher.  The article addresses the impact of the Roman Catholic Church's sex abuse sandal on the life of the author, who investigated and wrote about it.

Readers who know me know that our firm filed the two successful cases against the Nashville Diocese of the Roman Catholic Church.  We were associated in the cases by John Hollins, Jr.   I will not go into details, but suffice it to say that these two cases changed my life, and not in a positive way.  I continue to struggle with conduct of the Church in those cases, actions that I did not believe would be even possible from those affillated with any respectable church.  Perhaps I was naive, but unlike most times in my life the education I received has had more negative consequences than positive.

Like the author, I disagree with the concept expressed by Father Richard John Neuhaus, who is reported as having  said "[t]here are things [Catholics] really don't want to know about their church."   Like the author, there are times I wish I had not looked under the rock.  And, like the author, I sometimes wonder "[h]ow much reality must we choose to ignore for the greater good of our own souls, and society?"  

I still fall on the side on transparency, of shining the light under rocks, but am forced to agree that I sometimes wonder whether the price paid for transparency is too high.

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 Jeffrey surreptitiously installed video equipment in the bedroom of the marital home (where Jeffrey may or may not have been living, depending on whom one believed), including a motion sensing optical eye in the headboard of the bed and a camera concealed in an alarm clock.   His wife Cathy learned of the activities and sued her husband  for invasion of privacy.

The tape that Cathy was able to get her hands on contained nothing of a demeaning nature.  She could not prove that Jeffrey shared the results of his taping activities with anyone else.

In the divorce action filed by Jeffrey Cathy  was awarded damages ($22,500) for invasion of privacy.

The Iowa Supreme Court affirmed, saying that "Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time."

The Court also said that  "[t]he intentional, intrusive, and wrongful nature of Jeffrey’s conduct is not excused by the fact that the surreptitious taping recorded no scurrilous or compromising behavior. The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."  The Court also said that the fact that Cathy did not prove that the tape was showed to others did not affect that merits of her claim.

I am confident that the loyal readers of this blog are absolutely overwhelmed with questions about this opinion.  And you know, from your years of reading this blog, that I would enjoy nothing more than answering those questions. 

But the fact remains that I am a practicing lawyer, that I have a very busy law practice, and I have a wife and three children who are entitled to some portion to my day.  So, I will answer the one question - just one - that I know will arise in the minds of my faithful readers: where can I get an alarm clock that contains a hidden camera?  Here.

The case is In re the Marriage of Jeffrey E. Tiggs and Cathy J. Tiggs, No. 07-1103 (Iowa 12/19/2008).   Read the opinion here.   

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The February 2009 edition of the Tennessee Trial Law Report is at the printer  and will be mailed to subscribers in the next day or two.

This edition includes a summary of 24 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between December 15 and January 15. 

The newsletter also includes (a) Part 2 of my three-part article of the law of motions In limine;  and (b) a summary of the status of 25 cases of interest to tort lawyers that are pending before the  Supreme Court of the United States and the Supreme Court of Tennessee. 

One lawyer mentioned to me that he was not interested in the newsletter because he reads the cases he needs to read in the court-prepared summaries listed on TBA  Today.   That is one way to stay current, but consider this:  Brandon Bass and I review every case - civil and criminal - and look for issues of interest to tort lawyers.  Approximately 170 decisions are released per month, and there are a good number of evidence issues buried in criminal law cases and other opinions that are helpful to tort lawyers.  The 24 decisions summarized for February were culled from those 170 or so opinions.  The 24 decisions were over 240 pages in total length - our summary of them is contained on 15 pages. 

It is also important to note that the court-prepared summaries of opinions do not always include reference to civil procedure and evidence issues discussed in the opinions.

Therefore, while  I am a big advocate of TBA Today and in fact read it every day,  I think you will find that having the information you need condensed into one newsletter will save you time and money. 

To those of you who have already subscribed to Tennessee Trial Law Report,  thank you.  To those of you who have not, you can purchase a subscription at www.triallawreport.com.

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My friend Tom Vesper from Atlantic City, N.J. has had a new book published.  It is called Uncle Anthony's Unabridged Analogies:  Quotes and Proverbs for Lawyers and Lecturers.  Tom is great storyteller and I am sure that his book reflects his wisdom, wit and style.

You can order it here.

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Jack Weisberg kept up with George W. Bush's verbal slip-ups during the past 8 years.

It was a full-time job.

This article contain's Weisberg's  list of the top 25 Bushisms.

A sample: because of the rising cost of malpractice insurance, "[t]oo many OB/GYNs aren't able to practice their love with women all across the country."

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I know - this is the third posting about  the 2007-08 Annual Report of the Tennessee Judiciary.  I can't help myself - I am fascinated by this kind of data.

This falls in the "can you believe this" category?

1. There were about the same number of  DUI charges filed in circuits court in Tennessee last year as there  were tort damage lawsuits (11,000).   There were more divorces  and more burglary charges filed than tort lawsuits ,
2. Williamson County did not have a single medical malpractice lawsuit filing during the fiscal year ending June 30, 2008.
3. Montgomery County (Clarksville) had only 7 medical malpractice filings and Wilson County (Lebanon) had only 3.    Hamilton County (Chattanooga) had a mere 17 med mal complaints filed and Madison County (Jackson) had but 5 filed.
4. As mentioned in an earlier post, there were 537 med mal cases filed in the entire state.  There are 6,000,000 people in Tennessee.  Statistically, about 2000 people died from medical malpractice in Tennessee during that period, and many more were injured.
5. Believe it or not, there were more  kidnapping filings (735) than there were medical malpractice filings (537).

Here is the report.

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The 2007-08 Annual Report of the Tennessee Judiciary also has some interesting statistics on appeals.   Here are some of the highlights:

1. There were 793 Rule 11 applications filed during the fiscal year.  ( A Rule 11 application is a request for the Tennessee Supreme Court to hear a discretionary appeal.)  How many were granted?  48. 
2. Number of certified questions accepted by the Court in the fiscal year?    3
3. Total number of Court of Appeals opinions released during the fiscal year?  753 (more than one per week per judge).
4. Petitions to rehear filed in the Court of Appeals?  101  Number granted?  15
5. Total number of Rule 9 (interlocutory appeal) and Rule 10 (extraordinary appeal) applications filed in the Court of Appeals?  106    Number granted?  22
6. Total number of Rule 9 and Rule 10 applications filed in the Supreme Court?  50   Number granted?  6

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The Tennessee Supreme Court has just released the 2007-08 “Annual Report of the Tennessee Judiciary.”   It includes data for the 2007-08 fiscal year.  Here is some of the information revealed in the report:

1. There were 537 medical malpractice cases filed during the fiscal year.  That is down almost 10%  from the 584 filed during the previous fiscal year.   There were dispositions of 462 of those cases but only 20 of them actually went to trial.
2. There were 11,171 personal injury and wrongful death cases filed.
3. There were 506 personal injury and wrongful death cases tried in fiscal 2007-08.  Of those, there were 246 jury trial and 260 non-jury trials.  Last year there were 590 such trials, and 289 of them were jury trials.  Thus, jury trials were down about 15%.
4. In those 506 trials, there were damage awards in 237 ( a little over 45%).  Of course, the mere fact that there was a damage award does not mean that the plaintiff "won" the case because the plaintiff may have had an offer greater than the judgment awarded.
5. The total damages awarded in the state increased over the previous fiscal year by over 25% to slightly over $58,000,000.  (Included in that amount is a judgment of over $17,000,000 awarded in a non-jury trial in Putnam County against 2 individuals.  If that judgment is collectible I will eat the Nashville phone directory.)
6. There were 13 judgments totaling $1,000,000 or more in the entire stated ruing the entire fiscal year.  No county had more than one $1,000,000 verdict. 
7. There were 191 judgments for the plaintiff less than $100,000.
8. Shelby County had 36 jury trials in personal injury and wrongful death cases during the fiscal year.  Davidson County had 33, Hamilton County had 22, Madison County had 10 and Montgomery County had only 5  jury trials.  Knox County had the highest number at 44.    District 17 (Bedford, Lincoln, Marshall and Moore counties) did not have a single personal injury or wrongful death jury trial (and they had only 3 non-jury trials).
9. The "average" amount awarded to a successful plaintiff was about $242,000.   This is the arithmetical mean, greatly influenced by what I am quite confident is the $17,000,000 Putnam County judgment that cannot be collected.  If one throws out that high verdict and the lowest verdict (assume the low verdict is $10,000 - the exact number is unknown) the arithmetical mean drops below $200,000.   The median award would be somewhere under $100,000 (because about 80% of the awards were under $100,000) but we do not have enough data to determine the exact number.

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The state's law libraries are closing their doors to lawyers and other citizens.  The Administrative Office of the Courts is cutting programs and staff.  Appellate court law clerks are fearing the loss of their jobs.

Tennessee budget problems are hitting the judiciary and it remains to be seen what impact the financial cuts have on civil jury trials.  In New Hampshire,  civil and criminal jury trials are being eliminated for an entire month.  Florida has cut 280 clerks, lawyers and staff members, and if another 10% budget cut is made civil jury trials will be suspended, according to one judge.

Will the budget crisis force the state to take a hard look at judicial system?  There are some tough questions that will be asked.  Do we need two sets of clerks - chancery and circuit?  Should the Tennessee Supreme Court be given the power to administer the court system, allocating resources across the state as needed?

Challenging times given rise to the need to ask -and answer - tough questions.

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On March 24, 2006 I wrote about the death of my grandmother, Milda Heath, at the age of 97.  Today is her 100th birthday.

She was a wonderful grandmother, mother, teacher and citizen.  I miss her.

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Thank you to the hundreds of you who have said such kind words about our new newsletter, Tennessee Trial Law Report - Tort Law Edition.  Brandon Bass and I have worked hard to put together a newsletter than will save you time and make you money.

Our idea was to have one source where a tort lawyer could stay up-to-date with all of the case law in the field of torts, civil procedure, evidence and trial.  Your kind words, and your subscriptions, have confirmed that we are on the right track.

To read more about the newsletter and order a sample see our website.   It includes a handy list of references for  Tennessee tort lawyers.

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It has been revealed that Dr. Frederick K. Goodwin, host of NPR's "Infinite Mind," earned at least $1.3M from drug makers.   He received the payments for giving lectures.   NPR says it did not know about the payments, Goodwin says it did, but clearly the show's listeners did not.

Did the payments compromise the integrity of the show?  Who knows.  Did they compromise the perception of the integrity of the show?  Yes, beyond a shadow of a doubt.

Everyone understands that people who speak at seminars should be compensated for their time and expertise.  Seminar presentations require lots of work, and even if you have given the exact talk before you are still taking time away from your family, your work, or both.

But your radio show listeners (and your patients) have a right to know that you are receiving income from the manufacturer of the drug you are recommending.  Why?  So that they can make an informed decision of whether to accept the recommendation. 

To be sure, the simple fact that someone is being paid to push / prescribe a drug does not mean that one should not take the drug.  Nor does it mean that this or any other  doctor would not have recommended the use of the drug absent the receipt of payments. 

But it is naive to think that no doctor would be influenced by such payments as they develop their prescribing habits,  LIkewise, one can quickly see that such payments could infuence what a doctor says about the payor's product on a radio program.

Do you think I am wrong?  Well, read this post, which reports on a study by Forbes that a doctor who owns an interest in a MRI is four times as likely to order MRIs for his or her patients. 

I am not slamming doctors.  I am just suggesting that it is not unusual for the receipt of income or the risk of loss of income to impact  the conduct of humans.

And doctors are human.

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The Florida Supeme Court has relied on the Restatement (Second) of Torts to impose a duty on the manufacturer of anthrax "to avoid a an unauthorized intercepton and dissemination of the materials."

The lawsuit arose out of the mailing of stolen anthrax some seven years ago that resulted in the death of a man in Florida when he came into contact with the substance at his place of work.

The case is United States v. Stevens, No. SC07-1074  (Fl. Oct. 30, 2008).  Read it here.

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Brandon Bass and I are pleased to announce that the inaugural edition of Tennessee Trial Law Report - Tort Law Edition has been printed and mailed to  Tennessee lawyers who we know  practice tort law. 

Brandon and I resigned from our position as editors of the Tennessee Tort Law Letter  and launched this new publication in an effort to better serve the needs of lawyers in the state that do tort work.  It is our view that tort lawyers need to stay current on the law of torts - but we also need to stay current on the law of evidence, civil procedure and trial.  So, Tennessee Trial Law Report summarizes opinions in all four fields, whether those opinions are primarily tort opinions or instead are domestic, commercial or criminal law opinions that have morsels of information tort lawyers need to know.

For example, one of our lead opinions this month is not a tort case at all but rather a Court of Criminal Appeals opinion by Presiding Judge Joe Tipton on expert testimony.  Another of our summaries addresses a non-tort Tennessee Supreme Court case on a important evidence issue. 

I know what you may be thinking: "I barely have time to keep up with tort law.  How can I keep up with the law of evidence, civil procedure and trial every month?"  Well, we have tried to ease the burden.  While we have summarized every case, we also prioritize each case, telling you the opinions you must read, the opinions you should read if you practice in a particular area of tort law, and the opinions you probably don't want to read unless you have a similar case pending.  So, you can read the newsletter, get a readable summary of each case, and then know what else you need to read to stay up to date.

The newsletter also includes a feature called "The Law of Trial."  There are so few trials these days that it is easy to forget the body of law particular to trial procedures.  This monthly column will go through the entire trial process and give you not only the law but also practical tips.  The first column concerns scheduling orders.

The newsletter also includes a complete list of all cases before the Tennessee Supreme Court addressing the law of torts, evidence, civil procedure and trial.

As I said above, we tried to identify Tennessee lawyers who do tort work and sent them a free sample of the newsletter.  We hope each of our readers is on the list.  If you do not receive your copy in the next few days go to the newsletter website and request a copy.

 Finally, please let us know what you think of the newsletter.  We tried to anticipate what our readers need and want to better serve their clients but we remain open to making changes in the format of the publication. 

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The Fall travel schedule begins again. 

Many of you know that  five years ago former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I establsihed a seminar company called "Justice Programs."  We offer a 15 hour CLE program each Fall that permits attendees to meet all mandatory CLE obligations for the entire year and, more importantly, gives civil trial practioners the opportunity to gain valuable information for their practice.   Tomorrow we make our first stop in the year in Chattanooga.

Here is the outline for our course in 2008:

Tort Law / Comparative Fault – John Day

John's review of the most recent tort and comparative fault opinions will give you an up-to-the-minute picture of the current state of the law in this practice area. John will offer an analysis of emerging trends, and how those trends can (and will) affect your practice going forward.

U.S. Supreme Court Review – Joe Riley

Joe reviews the significant U.S. Supreme Court decisions issued during the 2007-08 term. What is their significance to your practice? What can we expect in the future from the court? What appears to be the judicial philosophy of the various justices?

Criminal Law Update – Joe Riley

Any lawyer needs to have a general understanding of recent developments in criminal law. Joe takes an insider's look at recent Tennessee Supreme Court opinions and their impact upon our judicial system. Are recent appointees to the court likely to change the direction of the development of our criminal law?

Authenticating and Admitting Electronically Stored Evidence – Penny White

Penny will guide you through the admissibility of all types of electronic evidence – emails, webpages, internet postings, digital photographs, and computer generated documents and data files. Why go through all the trouble of discovering this stuff if you can't get it admitted? And on the other hand, how can you keep it out?

Depositions: Law & Practice – John Day

Lawyers in all areas of practice will benefit from John's practical review of developing a deposition strategy, preparing both expert and lay deponents, and focusing your examination (or cross) for maximum effectiveness. John will also cover the law of depositions in Tennessee.

Significant Recent Cases/Legislation – Penny White

Penny reviews the significant decisions in the areas of employment law, family law, workers' compensation, estates and property and summarizes significant state legislation.

Trial Simulation: Thorny Evidence Issues – Penny White, Joe Riley, John Day

Evidence issues arise quickly and unexpectedly in the heat of trial. By use of a trial simulation, John, Joe, and Penny will explore some of the thornier evidence issues that come up in every trial.

Ethics: The Secrets That We Keep – Joe Riley

Joe examines a "Sixty Minutes" segment concerning two lawyers who kept secret their client's admission of committing a murder. By doing so, an innocent man was tried, convicted and sentenced to life. Upon the death of their client, they revealed the long-kept secret. Joe takes a no-holds-barred look at confidentiality and the public's perception of this unique lawyer/client relationship.

Ethics: The Lies We Must Reveal – Penny White

After Joe's discussion of the rigorous demands of confidentiality, Penny will explore under what circumstances lawyers have a duty to tell. When do you know that your client has told a lie? When does it matter? What do you do when you client lies at a deposition or at trial? What if the liar is not a client, but a witness?

Ethics: The Questions We Want Answered – Penny White, Joe Riley

Penny and Joe give you the opportunity to submit the most difficult ethics/professionalism questions you want answered. They will also explore previously submitted questions from inquisitive lawyers from other parts of the state. This is an interactive session with possible solutions to these dilemmas being provided by other participants at the seminar.
 

Here is our schedule:

Chattanooga, TN
Thursday, November 6, 2008, thru
Friday, November 7, 2008, at 8:30 A.M. each day.

Knoxville, TN
Thursday, November 13, 2008, thru
Friday, November 14, 2008, at 8:30 A.M. each day.

Nashville, TN
Thursday, November 20, 2008, thru
Friday, November 21, 2008, at 8:30 A.M. each day.
 

Memphis, TN
Thursday, December 11, 2008 thru
Friday, December 12, 2008 at 8:30 A.M. each day.

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A Handbook for Tennessee Tort Lawyers 2009 is scheduled to arrive in Brentwood on November 3 and will start being shipped to purchasers on November 4.

The 2009 of the book follows the same format as the 2008 version.   It has been expanded to include 8 new chapters and 28  new sections on tort law subjects for a total of  262 sections.  Each section includes the key language of the leading case on that subject and, as appropriate, citations to other important cases on the subject.  Also included is a reference to all opinions released in the last year on tort law organized by chapter and section.

The book also includes the full text of all of the new  statutes of interest to Tennessee tort lawyers.

Finally, the 2009 version of the book includes a complete copy of the rules of civil procedure, evidence and civil procedure, as updated by the 2008 amendments.

The total book consists of almost 1100 pages.   Because of the difficulty of binding a paperback book that is that thick, the book has been split into two volumes.

The  price of the new book is $190 plus sales tax of $17.58.  Those who attend the 2008 Justice Program seminars receive a copy of the book for $150, a savings of $57.58.

To order your copy, send a brief note and check for $207.58  to Lex Lata Publishing, Attn. Kori Conner, 5300 Maryland Way, Suite 300, Brentwood, TN 37027.   A discount is available for multiple copies purchased at the same time.  To learn the amount of the discount send an email to kconner@dayblair.com and tell us how many copies you need.

Note:  did you purchase the 2008 Edition?  If so, send us $175 and we'll pay the sales tax.

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The Tennessee Supreme Court  released its decision in Hannan v. Alltel Publishing Company and has affirmed Judge Susano's reversal of summary judgment in favor of the defendant. 

The court, by a 4-1 margin, re-affirmed its decisions in Byrd, McCarley and Blair and held

a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial.

Chief Justice Holder's majority opinion may be viewed here.

Justice Koch dissented; his opinion may be viewed here.

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Associated Press  has reported that Nebraska State Senator Ernie Chambers' lawsuit against God has been dismissed for lack of service of process.  The suit sought a permanent injunction to prevent God from committing acts of violence such as tornadoes and earthquakes. 

Just think, if God was a Tennessee doctor the suit could have never been filed because God could have never been served with notice as required under the new statute. 

It just goes to show you:   membership (in the TMA) has its advantages.

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A Handbook for Tennessee Tort Lawyers 2009 has been sent to the printer.

The 2009 of the book follows the same format as the 2008 version.   It has been expanded to include 8 new chapters and 28  new sections on tort law subjects for a total of  262 sections.  Each section includes the key language of the leading case on that subject and, as appropriate, citations to other important cases on the subject.  Also included is a reference to all opinions released in the last year on tort law organized by chapter and section.

The book also includes the full text of all of the new  statutes of interest to Tennessee tort lawyers.

Finally, the 2009 version of the book includes a complete copy of the rules of civil procedure, evidence and civil procedure, as updated by the 2008 amendments.

The total book consists of almost 1100 pages.   Because of the difficulty of binding a paperback book that is that thick, the book has been split into two volumes.

The  price of the new book is $190 plus sales tax of $17.58.  Those who attend the 2008 Justice Program seminars receive a copy of the book for $150, a savings of $57.58.

To reserve your copy, send a brief note and check for $207.58  to Lex Lata Publishing, Attn. Kori Conner, 5300 Maryland Way, Suite 300, Brentwood, TN 37027.  The book will be shipped the last week of October, 2008.  A discount is available for multiple copies purchased at the same time.  To learn the amount of the discount send an email to kconner@dayblair.com and tell us how many copies you need.

Note:  did you purchase the 2008 Edition?  If so, send us $175 and we'll pay the sales tax. 

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After over 13  years,165 editions, and no less than  1500 printed pages,  I have resigned from my position as the Editor of the Tennessee Tort Law Letter."   The September 2008 edition, mailed a couple days ago, is my final edition.

I will be taking one month off and then will launch a new tort law newsletter in November, 2008.  Brandon Bass (who  has resigned from his position as Assistant Editor of the TTLL) will be joining me in the effort. 

I will share the details on the new newsletter at a later date.  For the time being suffice it to say that the new newsletter will be a dramatically different publication and, I hope, one that helps its readers help their clients. 

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The Saturday Night Live video.

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Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated.  A total of 22 cases have been added supplementing 35 sections of the book.

To take advantage of this service, read the section of the book applicable to your tort law issue (there are 233 sections covering 233 issues), read the leading case on the issue, and then go to the "Free Updates" section of the website to see what decisions, if any, have been released on that subject since the book went to press in September 2008.

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 Written by Will Bunch, as found at www.philly.com.

Palin's Speech to Nowhere

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It is not uncommon for the defense in personal injury cases to attack the character of the plaintiff.  It seems to me that young defense lawyers particularly enjoy doing this to uneducated, unsophisticated plaintiffs. 

The defense in a products case in California  introduced evidence that the plaintiff had a mistress and was a bigamist.  The jury rendered a defense verdict, and the plaintiff moved to set it aside saying that the admission of the evidence unfairly prejudiced the jury against the plaintiff.  The California Court of Appeals, 2nd District agreed, saying

 Michelin’s primary basis for introducing evidence of Winfred’s illicit conduct was to contradict his deposition testimony that he could not recall who [his wife and mistress] were. But his extramarital affairs were irrelevant to the substantive issue in the case: the cause of the accident. To the extent the evidence was relevant to Winfred’s credibility, it was more prejudicial than probative. ... From start to finish, Michelin painted Winfred as a liar, cheater, womanizer, and a man of low morals based principally, if not solely, on what we have concluded was inadmissible evidence.

This is a fascinating opinion, one that rebuts all of the arguments that the defense typically uses to attempt to destroy a plaintiff.   And this plaintiff had more problems than most.

Winfred D. v. Michelin North American, Inc., No. 195416 (Cal. Ct. App. 2nd Dis.  Aug. 7, 2008).

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Day on Torts: A Handbook for Tennessee Tort Lawyers 2009 is almost ready to go to press.   The 2009 edition will include reference to all of the Tennessee appellate cases on tort law released in the last year, add over 20 new statutes of interest to tort lawyers, and update rules of civil procedure, evidence, and appellate procedure.

Importantly, the 2009 edition will includes at least 20 new chapters.  Each chapter addresses the leading case on an important tort law subject.  The additional  chapters mean that the book will now include over 250 subjects.

The 2009 edition also includes a much more detailed table of contents in the "Selected Statutes" section.  We believe this change will make that section of the book even easier to use.

The new edition will be over 1000 pages.  We are approaching the point where we may need to split it into two volumes, and in 2009 we will be soliciting input from our readers to see if they want to see that occur.  

The book will ship in late October 2008.  The list price is  $190 including sales tax, shipping and handling, down slightly from last year.  Those who attend one of this year's Justice Programs seminars may purchase the book for only $150 (including  sales tax, shipping and handling). Discounts are available for multiple copies shipped to the same address. 

There are still some copies of the 2008 book available.   Those who order and pay for the 2008 book between August 15 and October 1, 2008 will receive the 2009 book at no additional charge. 

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Many of you know that former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I have a seminar company called "Justice Programs."  We offer a 15 hour CLE program each Fall that permits attendees to meet all mandatory CLE obligations for the entire year and, more importantly, gives civil trial practioners the opportunity to gain valuable information for their practice.

Here is the outline for our course in 2008:

Tort Law / Comparative Fault – John Day

John's review of the most recent tort and comparative fault opinions will give you an up-to-the-minute picture of the current state of the law in this practice area. John will offer an analysis of emerging trends, and how those trends can (and will) affect your practice going forward.

U.S. Supreme Court Review – Joe Riley

Joe reviews the significant U.S. Supreme Court decisions issued during the 2007-08 term. What is their significance to your practice? What can we expect in the future from the court? What appears to be the judicial philosophy of the various justices?

Criminal Law Update – Joe Riley

Any lawyer needs to have a general understanding of recent developments in criminal law. Joe takes an insider's look at recent Tennessee Supreme Court opinions and their impact upon our judicial system. Are recent appointees to the court likely to change the direction of the development of our criminal law?

Authenticating and Admitting Electronically Stored Evidence – Penny White

Penny will guide you through the admissibility of all types of electronic evidence – emails, webpages, internet postings, digital photographs, and computer generated documents and data files. Why go through all the trouble of discovering this stuff if you can't get it admitted? And on the other hand, how can you keep it out?

Depositions: Law & Practice – John Day

Lawyers in all areas of practice will benefit from John's practical review of developing a deposition strategy, preparing both expert and lay deponents, and focusing your examination (or cross) for maximum effectiveness. John will also cover the law of depositions in Tennessee.

Significant Recent Cases/Legislation – Penny White

Penny reviews the significant decisions in the areas of employment law, family law, workers' compensation, estates and property and summarizes significant state legislation.

Trial Simulation: Thorny Evidence Issues – Penny White, Joe Riley, John Day

Evidence issues arise quickly and unexpectedly in the heat of trial. By use of a trial simulation, John, Joe, and Penny will explore some of the thornier evidence issues that come up in every trial.

Ethics: The Secrets That We Keep – Joe Riley

Joe examines a "Sixty Minutes" segment concerning two lawyers who kept secret their client's admission of committing a murder. By doing so, an innocent man was tried, convicted and sentenced to life. Upon the death of their client, they revealed the long-kept secret. Joe takes a no-holds-barred look at confidentiality and the public's perception of this unique lawyer/client relationship.

Ethics: The Lies We Must Reveal – Penny White

After Joe's discussion of the rigorous demands of confidentiality, Penny will explore under what circumstances lawyers have a duty to tell. When do you know that your client has told a lie? When does it matter? What do you do when you client lies at a deposition or at trial? What if the liar is not a client, but a witness?

Ethics: The Questions We Want Answered – Penny White, Joe Riley

Penny and Joe give you the opportunity to submit the most difficult ethics/professionalism questions you want answered. They will also explore previously submitted questions from inquisitive lawyers from other parts of the state. This is an interactive session with possible solutions to these dilemmas being provided by other participants at the seminar.
 

Here is our schedule:

Chattanooga, TN
Thursday, November 6, 2008, thru
Friday, November 7, 2008, at 8:30 A.M. each day.

Knoxville, TN
Thursday, November 13, 2008, thru
Friday, November 14, 2008, at 8:30 A.M. each day.

Nashville, TN
Thursday, November 20, 2008, thru
Friday, November 21, 2008, at 8:30 A.M. each day.
 

Memphis, TN
Thursday, December 11, 2008 thru
Friday, December 12, 2008 at 8:30 A.M. each day.

We hope that you will join us.  Register here.  Registrants also receive a discount on A Handbook for Tennessee Tort Lawyers 2009, which will be available in ;late October 2008.

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SVMIC's position on how the new statute making it more difficult to sue physicians will impact what doctors pay for medical malpractice insurance:

"Regarding the effect of this reform on your professional liability insurance, it will be difficult to quantify what, if any, rate changes are a direct result of the reform. A multitude of factors affect the filing of suits and awards in medical malpractice cases, therefore it may be a period of time before any effect will be realized. We congratulate the TMA on their accomplishment after many years of hard work for reform."

Is anyone surprised by this?

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Ok - I know I have not been posting lately.  I spent 8 days in Canada fishing and returned on Saturday night.

I am now back to work and will be back on a normal blogging pattern this week.

Thanks for coming back to the site.

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AAJ has released a report titled "The Ten Worst Insurance Companies in America."  Read it here.

The list: 

1.  Allstate

2.  Unum

3.  AIG

4.  State Farm

5.  Conseco

6.  Wellpoint

7.  Farmers

8.  United Health

9.  Torchmark

10.  Liberty Mutual

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This post has nothing to do with torts.

How is it possible that the White House, which has direct access to and hopefully control  over the State Department, the Defense Department, the CIA, the NSA, and  host of other agencies, possibly rely on a Web site called Encyclopedia of World Biography to prepare a biography on a world leader?   Want to know more?  Read this article in the Washington Post.  http://www.washingtonpost.com/wp-dyn/content/article/2008/07/08/AR2008070802652.html

BTW, read this for George W. Bush's bio on the same site.  A teaser: 

 "After graduating from Yale in 1968, Bush moved back to Houston where he worked for an agribusiness company (a company that produces farm products and equipment) and for a mentoring program (a program in which people counsel or guide others). But the recent graduate was unfocused. Later, after beginning his political career, questions arose about how he had managed to avoid serving in the Vietnam War (1965–75; a war fought in Vietnam in which the United States supported South Vietnam in its fight against a takeover by North Vietnam). He was a member of a Texas Air National Guard unit stationed at Ellington Air Force Base. The unit included other sons of powerful people. At the time, the National Guard had a long waiting list of young men eager to avoid combat service in Vietnam during the war, but Bush managed to sail through easily."

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I spent the last week at Rosemary Beach, Florida with my family.  I took a week off from blogging and virtually everything else and did nothing.

Let the blogging begin!  Here is a Tort Law Tibit from June of 2005:

The Manual on Uniform Traffic Control Devices is available, free of charge, online at the Federal Highway Administration website. The site not only has the latest 2003 edition, but goes back as far as the 1993 revisions. You should be able to find the right edition to address any pending or potential claim for a roadway that is dangerously unmarked. Compliance with the MUTCD is necessary, but not always sufficient. The MUTCD and the law still require reasonableness by a contractor or highway planner.

The MUTCD is incorporated by reference into the regulations of the Tennessee Department of Transportation. Therefore, violation of the MUTCD is negligence per se.

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As a 51 year old man happily married to a beautiful, intelligent 37 year old woman, I confess I don't spend a lot of time thinking about thongs.  I also confess that it never crossed my mind that a person wearing a thong could ever suffer a personal injury from the thong.    Oh sure, I knew that a thong could cause financial loss, usually in the form of alimony paid by the married man dating a woman who wore one.  And I could certainly image some degree of discomfort when wearing a thong in a foreseeable manner- clearly an assumed risk.  But actionable personal injury?  Nope, never crossed my mind.

Well, it has happened.  Or at least Macrida Patterson, a 52 year old woman from California, says it happened.  Her lawyer told The Smoking Gun that "a "design problem" caused [a] decorative piece [on the thong] to come loose and strike Patterson in the eye, causing damage to her cornea."    The offending piece of merchandise was  reportedly  a "'low-rise v-string' from the Victoria's Secret 'Sexy Little Thing' line."  Read the article and complaint here.

TSG also tells us that   "v-strings" are an undergarment that serves as  the Victoria's Secret variant on the "g-string," " which has long been favored in the battle against visible panty lines" (also known as "vpls").  (Aren't you men glad TSG saved us hours of time paging through the latest VS catalog trying to figure this out?  For those of you who don't trust TSG, go here and conduct your own research.)

Tort law - a wonderful way to make a living.

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The Tennessee Supreme Court has issued an opinion interpreting Rule 35 of the Tennessee Rules of Civil Procedure.

Rule 35 is the rule the permits a party to have a physician of the party's choice examine the adverse party.  Unfortunately, it is often referred to as an independent medical examination, and indeed the opinion mistakenly refers to it as such.  Rule 35 exams usually have the same degree of objectivity as a mother opining on  the character and physical appearance of her only son. 

But on to substance.  Very few civil procedure cases find their way to the Tennessee Supreme Court (exception:  Rule 56) and when one does get there we need to read it.  This is true even in this case where the plaintiff was pursuing a worker's compensation claim and the issue is primarily covered by the Worker's Compensation Act.

The  bottom line for examinations under the Act:  "In summary, we hold that an employer has a statutory right to compel an injured employee to undergo a medical evaluation by a physician of the employer’s choosing. The employee may challenge the request as unreasonable in light of the circumstances. If the trial court determines the request is reasonable, the employee must submit to a medical evaluation conducted by the physician of the employer’s choice. ... If the employer’s request is unreasonable, the trial court should deny the request, but must specifically state its reasons in the record."

The Court's opinion makes it clear that Rule 35 examinations sought in cases not subject to the Act are subject to a different standard:  "Once the moving party establishes a mental or physical condition “in controversy” and “good cause,” the rule gives the trial court discretion to order a medical examination."   

Read the entire opinion in Billy Overstreet v. TRW Commercial Steering Division and State of Tennessee Dept. of Labor Workers' Compensation Division Second Injury Fund, Sue Ann Head, Administrator,  M2007-01817-SC-R10-WC  (Tenn. June 17, 2008)  here.

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Governor Bredesen has signed the "Uniform Interstate Depositions and Discovery Act" into law.  The Act is effective for discovery requests after July 1, 2008. 

The legislation establishes a procedure for litigants in other states to do discovery in Tennessee.  However, the Act is a uniform act, so Tennessee lawyers will benefit from knowledge of it when they have to do discovery in other states that also have the Act

The legislation also repeals on portion of the current chapter, T.C.A. Section 24-9-103.

Here is the text of the new law

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The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine.  The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker's compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case.  Either the employer or the employee may file a worker's compensation complaint.  When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC.  If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties." 

Footnote 5 of the opinion sets forth some other aspects of the prior suit pending doctrine not applicable to the cases before the Court:  "In addition to those requirements set forth in Cockburn, [as described in the preceding paragraph], we have recognized at least two other limitations on 5 the applicability of the prior suit pending doctrine. We have held that the prior suit pending doctrine is inapplicable when the prior lawsuit has been dismissed or discontinued. Walker v. Vandiver, 181 S.W. 310, 311 (Tenn. 1915). In other words, the prior lawsuit must continue to be “pending” in order for a subsequent lawsuit to warrant dismissal. See id. We have also held that the doctrine is inapplicable when the prior lawsuit was brought in a federal court or in the court of a foreign state. Hubbs v. Nichols, 298 S.W.2d 801, 802-03 (Tenn. 1956). There is, however, an exception to this latter rule. In cases involving in rem or quasi in rem jurisdiction, a prior suit pending in a federal court or in the court f another state will prevent a party from bringing a second lawsuit in Tennessee. Id. at 803."

Finally, it is obvious that the Court does not like the idea of lawyers racing to the courthouse to secure what they perceive to be a more favorable judge.  The Court said that the  "process of racing to the courthouse unseemly. It reflects attorneys’ lack of confidence in the judiciary of this state to apply the Workers’ Compensation Law in an evenhanded manner and demonstrates that lack of confidence to clients and the public at large. Furthermore, this process engages attorneys in the undignified spectacle of literally racing to secure perceived procedural advantages. Such gamesmanship does little to improve the image of attorneys in the eyes of the public. Indeed, at oral argument, counsel for the parties indicated that they do not relish participating in this practice."

Read the opinion in West v. Vought Aircraft Industries, Inc., No. M2007-01904-SC-R9-WC,  here.

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Day on Torts: A Handbook for Tennessee Tort Lawyers 2008 has been updated.  The "Updates" section of the book's website, www.dayontortsbook.com, now includes all new torts decisions through Friday, May 1, 2008.

I estimate that the book has been updated by at least 100 cases in the past 9 months.  Many of the cases have to been cited to mutiple sections of the book.

The work on the 2009 version of the book is underway.   It will be available on October 15, 2008.

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This article by Judge Richard Posner (7th Circuit Court of Appeals) does a fine job discussing appellate briefs and oral arguments.

A sample:

"The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents. In an argued civil case, as I have just been emphasizing, there probably is no dispositive precedent—otherwise the case would probably not have gotten to the point of an orally argued appeal. And if there is no dispositive precedent, then unless the appellate judges are very gullible, it is futile to argue the case as if there were.

In a case that is not controlled by precedent, the task of the advocate is to convince the court that the position for which he or she is contending is the more reasonable one in light of all relevant circumstances, which include but are not exhausted by the case law, the statutory text, and the other conventional materials of legal decision making. I say “reasonable” rather than “correct” to give due recognition to the ineliminable element of discretion in the decision of a case that is not ruled by precedent or other conventional sources of law."

Enjoy.

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"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website.  The article notes that   (a)"of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable," and (b) "if all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved."

Here is a copy of the HealthGrades press release.  It includes this interesting remark: "We now have convincing case studies that perfection is possible when will to change and improve is present and the effort is made to implement new practices. While these examples illustrate that we have a much clearer idea of what we need to do, formidable barriers remain. Many in the industry continue to deny that truly safe care is achievable, thus the status quo continues, resulting in variation in patient safety in U.S. hospitals that is large and unpredictable. Numerous studies, including the 2007 AHRQ National Healthcare Quality Report (NHQR) assessing the state of hospital quality and patient safety, conclude and support the findings the progress remains modest and variation in healthcare quality remains high.”

Here is a copy of the study itself.

One reminder.  This study only covers the Medicare population.   Medicare is only "for people age 65 or older, some disabled people under age 65, and people of all ages with End-Stage Renal Disease (permanent kidney failure treated with dialysis or a transplant."  Thus it covers far less than one-half of the 300 million people in this country.

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The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.

In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence.  As the Court explained, "[a] plaintiff may, in a single lawsuit, assert many causes of action against a defendant. The considerations limiting a plaintiff’s available causes of action in the typical case are that the plaintiff must be able to demonstrate a prime facie case for each cause of action and that a plaintiff may ultimately recover only once for an injury."

The opinion also gives a nice summary of the common law of negligent hiring, training, supervision, or entrustment:  "in circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. See Restatement (Second) of Torts § 317 (1965) (Cited with approval in Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992))."

The dissent argued that "a plaintiff may proceed on a negligent hiring claim when the employer admits vicarious liability only if there is evidence of gross negligence in hiring that would support an award of punitive damages."

Read the opinion here.

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Well, it has been a longer break than I planned.  The trial started on February 25 and went to the jury shortly before lunch yesterday, March 11.   The jury actually started deliberations at about 12:45 and is returning to the courthouse for further deliberations today at 8:00 a.m.

Obviously, it  would not be appropriate for me to discuss the trial while the jury is still out. 

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This blog started three years ago this week.  There have been 1175 posts totaling millions of words made to it.  In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients.

I am taking a break for a couple weeks.  I start a medical malpractice wrongful death trial on February 25 and I simply do not have time to post  between now and the end of trial. 

Trials are, well, trials - they are called that for a reason.  Medical malpractice trials are a particular challenge, and medical malpractice trials with multiple defendants that take place out of town are all-consuming.  Although I have been involved in the case from the start, Rebecca Blair has taken the lead on case and trial preparation to date.  We argued motions in limine ten days ago so for the last three weeks a substantial percentage of my time has been devoted to this case.

From this day forward 100% of waking hours are required.

So, to the the hundreds of you who are kind enough to check this site every day, please excuse my temporary absence.  There is a boy who lost his mother who requires my undivided attention.

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We live in a log cabin in the woods in Williamson County.   This morning we are blessed with a strong rain - weather that we haven't seen much of in the last year.

Other than frequent sightings of deer and turkeys, one of the joys of living here is the sound of rain pelting the  tin roof.  I love to sit on the front porch, drink strong coffee, and listen to the rain.  It is little cool to sit outside this morning but the rain is hard enough that I can enjoy the sound from inside our home.

Rain, Blue Mountain coffee, and thoughts of superceding cause.  It is going to be a great day.

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The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The Court quoted with approval this language from a court in Michigan:  "In cases involving the loss or destruction of evidence, a court must be able to make such rulings as necessary to promote fairness and justice. To deny the courts the power to sanction a party in such circumstances would only encourage unscrupulous parties to destroy damaging evidence before a court order has been issued. Furthermore, regardless of whether evidence is lost as the result of a deliberate act
or simple negligence, the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence."

Presumably, a court could strike an answer and enter a judgment for the plaintiff if  a defendant's "destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The case is Cincinnati Insurance Co. v. Mid-South Drillers Supply, Inc., No. M2007-00024-COA-R3-CV  (Tenn. Ct. App.  Jan. 25, 2008).

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The Tennessee Supreme Court has just released the 2006-07 “Annual Report of the Tennessee Judiciary.” It has some amazing, indeed alarming, information.

• There were 584 medical malpractice cases filed in Tennessee last year. To put that in perspective, there were 10,165 general “Damages/Torts” cases filed. Indeed, there were less medical malpractice cases filed than there were kidnapping (660) and homicide (1622) cases.
• There were 28 jury trials in Chancery Court and 393 civil jury trials in Circuit Court in the entire state.
• There were just 590 jury and non-jury personal injury and death cases tried in the entire state; 289 of those were jury trials. In 242 jury and non-jury cases the plaintiffs recovered money (about 40%).
• Davidson County had 54 of the jury trials; Shelby County had 31. Knox Courty had 45 jury trials of personal injury and wrongful death cases, Hamilton County had 23 and Montgomery County had 6. Forty-three counties had no personal injury or wrongful death jury trials.
• There were only 15 medical malpractice trials in the entire state during the one year period covered by the report. ]
• About 5% of all personal injury and tort cases end up going to trial (jury or non-jury).
• Total damages awarded ($44,600,000) in personal injury and death cases is down from $94,500,000 a year previously.
• The total number of tort cases filed has dropped in the last ten years.
• This data is for the one year  period ending June 30, 2007.

Read the statistical section of the Annual Report here.

I will have some comments about  this data in later posts.

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The Economist reports about a new study that links physical appearance and income.

The article says that " a series of surveys in the United States and Canada [show]  that when all other things are taken into account, ugly people earn less than average incomes, while beautiful people earn more than the average. The ugliness “penalty” for men was -9% while the beauty premium was +5%. For women, perhaps surprisingly considering popular prejudices about the sexes, the effect was less: the ugliness penalty was -6% while the beauty premium was +4%."

But there is more:  "The difference also applies within professions. Dr Hamermesh [the author of the study] looked at the careers of members of a particular (though discreetly anonymous) American law school. He found that those rated attractive on the basis of their graduation photographs went on to earn higher salaries than their less well-favoured colleagues. Moreover, lawyers in private practice tended to be better looking than those working in government departments."

Read the entire article here.   

Tonight I intend to grab a calculator and my latest Social Security Administration lifetime earnings statement and try to figure out how much my appearance has cost me over the last 40 years.  

Anybody know if there is a tax deduction I can take for this loss?

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Dahlia Lithwick at Slate has selected the Bush Administration's Dumbest Legal Arguments of the Year. 

The list stopped at ten arguments; the writer was obviously working with a severe space limitation.

Here is an excerpt from the article: 

The United States does not torture.

First there was the 2002 torture memo. That was withdrawn. Then there was the December 2004 statement that declared torture "abhorrent." But then there was the new secret 2005 torture memo. But members of Congress were fully briefed about that. Except that they were not. There was Abu Ghraib. There were the destroyed CIA tapes. So you see, the United States does not torture. Except for when it does.

Read the entire article here.

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The Tennessee Supreme Court has appointed me to the Advisory Commission on the Rules of Practice and Procedure effective January 1, 2008.  I am honored by the appointment; I have always attempted to be a student of the rules of evidence and procedure and look forward to being a part of the process of improving them.

Do you have a proposed rule change that you think will advance the just, speedy and inexpensive resolution of disputes?  Write me an email and give me your thoughts.  Please don't just pass on an idea - take a stab at drafting the language that you think should be adopted.  Indicate why you think the rule change is appropriate.

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Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 has been updated.  The updates are free and may be found at http://www.dayontortsbook.com/lawyer-attorney-1251567.html.

To order the book go to http://www.dayontortsbook.com/lawyer-attorney-1251565.html.

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There is no better way to spend a rainy day than update a book (or so says the dullest man in America).

Day on Torts :  A Handbook for Tennessee Tort Lawyers has been updated.  Seven new cases have been added to "electronic pocket part" of the book.  To update the  book, scroll  to the relevant section here and open it to find links to important cases that have been decided since the book has been published.

Still don't own a copy?  Order here.  Want to get a feel for what you are buying?  Read a sample chapter.

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Today I am in Memphis for the last of our fourth annual Justice Programs seminars.  Former Justice Penny White, former Judge Joe Riley and I  created a company to offer "annual review" type CLE and ethics for civil trial practioners and it has done great.  We have  a great crowd in Memphis and in fact have had a great crowd across the state this year.

There is nothing like teaching substantive law at a CLE program to keep your knowledge level where it needs to be in your law practice.  It takes scores of hours to prepare for my talks on tort law and civil procedure, but I find that the preperation helps me serve my clients.

To those of you who joined us at a Justice Programs seminar this year:  Thank you.  To those of you who missed us I encourage you to give us a try.  I think you will find that our program gives you much more than CLE credit - it gives you information you can use to better serve your clients.

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A Handbook for Tennessee Tort Lawyers has been updated with Tennessee appellate court decisions through November 21, 2007.  To see the updates go to www. dayontortsbook.com, and go to the "Free Updates" section of the book.

Those of you who have not ordered the book can do so here.  Orders placed before December 31, 2007 receive free shipping.

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Updates to A Handbook for Tennessee Tort Lawyers - 2008 have been posted on the book's website.  The updates are available in the "free updates" section of the site.  To utilize this service, simply scroll down to the relevant chapter and section and click on it to see if there are any new cases in the relevant subject matter.

Book sales are brisk.  Two good-sized firms who handle primarily personal injury work have purchased a copy for virtually every lawyer in the firm. 

Recall that the book contains the leading Tennessee tort case on 233 subjects; here is a table of contents for that section of the book.  The book also contains selected statutes of interest to tort lawyers and a complete set of the Tennessee rules of civil procedure, evidence and appellate procedure. 

You can order your copy  here.

The purpose of this book is to help Tennessee personal injury lawyers get a head start on legal research.  By having ready access to the leading case on a given tort law topic, a lawyer can save a tremendous amount of legal research time.   The book will be updated annually.

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Read this heart-warming article by a doctor from Memphis as published in the November 12, 2007 Commercial Appeal.

Thanks to Lang Wiseman from Memphis for alerting me to the article.

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The book website is up and running ---  www.dayontortsbook.com.

Several people received advance copies of the "selected cases" portion of the book and were kind enough to write down their impressions for me to use in a brochure that you will receive any day now.  Those comments are as follows:

"John Day's new book is the most in-depth, comprehensive and thorough analysis of Tennessee tort law compiled in years. Every practicing lawyer should have one!"
                                                                                                         Sidney Gilreath, Knoxville

"With Day on Torts, John Day places a user-friendly reference on our desk that allows us to respond to a multitude of inquiries about torts that exceed our everyday knowledge.”
                                                                                                        Jimmie C. Miller, Kingsport

"John Day's book is an amazing resource for those of us practicing law in the tort area. The book sets out the basic facts and 'bottom line' on the leading cases on any tort subject one can imagine. I will have the book on my shelf and will take it to trial with me as a quick reference on
any issue that might come up." 
                                                                                                       Jill Steinberg, Memphis

The "selected cases" section of the book represents my view of the leading Tennessee case on each of 233 tort law subjects, as well as citations to other cases of interest.    This discussion covers the first 437 pages of the book. 

Shipping and handling charges are waived for all orders placed before December 31, 2007.

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This is an update on my new book, Day on Torts: A Handbook for Tennessee Tort Lawyers.

The book has been printed and is being shipped today from Florida.  I will have it Friday afternoon.  I already have orders for the book and will start shipping on Monday.

The new website, wwwdayontortsbook.com, will up and running on Thursday, November 1, 2007.  The book can be ordered on this web site.  You can also see a Table of Contents and sample chapter at the site.

As I have said in the past, my goal for this book is to provide a one-volume resource for Tennessee tort lawyers who are looking for a quick reference to the leading case on a given point. Need a quick summary of the law of informed consent? In less than one minute you will be able to find the leading case on point and use the concise summary of the holding in that case as a launching point for additional research. Receive a call on a potential defamation case? In less than one minute you will find a 13-page chapter that summarizes the leading Tennessee cases on the topic and references over 50 more cases,

The book organizes the leading Tennessee cases by topic. Many of the summaries also include citations to other cases of interest on the particular legal issue. In total, over 1000 cases are cited in the book.

Also included in the book is the complete text of over 500 Tennessee statutes that I have identified as being of interest to tort lawyers in Tennessee. The statutes have been updated to include the laws passed in the last session of the General Assembly. To select the statutes to be included in the book I started with Volume 1 of the Code and started reading. (Of course I didn't read every word of every section - the titles of the chapters and sections gave me what I needed to know.) What I ended up with is a collection of the statutes on jury selection, discovery, service of process, trial, the motor vehicle code, the products liability act, and a bunch of other stuff that will be available at your fingertips in one volume.

Finally, the book includes a complete set of the rules of evidence, civil procedure, and appellate procedure.

The book totals 968 pages.

The book will be re-published every year so that tort practitioners will have ready access to the newest statutes, cases, and rules without having to go to the web for updates.

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A judge responds in verse to a claim from a prisoner that he was not provided with a proper diet. The prisoner included a hard-boiled egg as an exhibit.

Thanks to Trial Ad Notes for informing me of the Order.

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Pacman Jones, a true embarrassment to Nashville, the Titans, the NFL, and his family, has been sued for his alleged misconduct in Las Vegas which is said to have resulted in the paralysis of a man.  I do not pretend to know the facts, do not want to take one second of my life to learn what they are,  and therefore will not offer an opinion as to the merits of that case.

The lawyer for the plaintiff has also sued the Titans and the NFL for the incident.   According to the Tennessean, "'[t]he fact that the NFL and the Titans did not punish Adam 'Pacman' Jones until after Tommy was paralyzed is a proximate cause of Tommy's injuries,' attorney Matthew Dushoff said before a news conference in suburban Las Vegas."

The incident did not arise at a football field.  Or a team party.  Or a locker room.  It happened at a strip joint.  In the off season.

One lawyer described the case against the Titans and the NFL as the equivilent of a Hail Mary pass.

That is generous.  The claim against the Titans and the NFL is the equivalent of a Hail Mary pass from an intoxicated blind quarterback to a blind receiver defended by today's equivalent of Herb Adderley and Mel Blount.

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Sorry folks, but I have a deposition today, several meetings on new cases tomorrow, and a mediation on Friday.  I also have a brief due Monday on a motion for judgment on the pleadings. 

In summary, I am simply covered up and cannot write a substantive post today. 

I will shoot for Friday.

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I know you remember the Feres doctrine.  The Feres doctrine comes from the decision in Feres v. United States, 71 S.Ct. 153 (1950) and provides that soldiers cannot sue the government for injuries that they incur as part of their military service.  Not surprisingly, the doctrine has been asserted by  government contractors who do work for the military and who seek immunity for their actions.

In McMahon v. Presidential Airways, Inc., No. 06-15303  (llth Cir. Oct 5, 2007) the widows of three soldiers who died in airplane crash in Afghanistan sued the entities that owned an operated the plane.  Feres   was rasied as a defense, but it was not the sole defense.  Here is the table of contents for the 72-page opinion:

I. Derivative Feres immunity

A. Interlocutory jurisdiction

B. Derivative Feres immunity

1. Feres doctrine
2. Derivative sovereign immunity
3. Application of Feres rationales to private contractor agents
4. Some form of immunity may be appropriate for private contractor
agents
a. Incident-to-service test
b. Feres as a basis for private contractor immunity where
sensitive military judgments may be involved

II. Political question doctrine

A. Interlocutory jurisdiction

B. Political question doctrine
1. Will the case involve a decision that has been constitutionally
committed to another branch?
2. Does the suit involve a lack of judicially discoverable and
manageable standards?
3. Other Baker factors

III.Preemption based on the combatant activities exception

IV. Conclusion

The result:  The Court held the Feres doctrine inapplicable.  Read the decision here.

Why am I telling you about this case?  Because this decision is a fantastic place to start your research if you ever face this issue.

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Penny White, Joe Riley and I are on the road again with our 4th annual 15-hour seminar program. 

Here is our schedule for each seminar:

First Day

8:00 - 8:30 Registration
8:30 - 10:15 Tort Law / Comparative Fault
10:15 - 10:30 Break
10:30 - 11:30 Dealing with Difficult Judges
11:30 - 12:15 U.S. Supreme Court Review
12:15 - 1:15 Lunch on your own
1:15 - 2:30 Tort Law / Comparative Fault (cont'd)
2:30 - 2:45 Break
2:45 - 4:15 Evidence in the Trenches
4:15 - 4:30 Break
4:30 - 5:45 Business Torts - The State of Tennessee's Law

Second Day

8:00 - 8:30 Registration
8:30 - 10:15 Significant Recent Cases / Legislation
10:15 - 10:30 Break
10:30 - 11:30 Civil Procedure Update
11:30 - 12:15 Criminal Law - For All Lawyers
12:15 - 1:15 Lunch on your own
1:15 - 2:45 Ethics / Professionalism
2:45 - 3:00 Break
3:00 - 4:30 Ethics / Professionalism
4:30 - 4:45 Break
4:45 - 5:45 Ethics/Professionalism

This is a list of the cities where the program will be presented and the dates we will be in each city:

EAST TENNESSEE
Chattanooga, TN
Thursday, November 8, 2007, thru
Friday, November 9, 2007, at 8:30 A.M. each day.

Chattanooga Convention Center
1150 Carter Street
Chattanooga, TN 37402 


Knoxville, TN
Thursday, November 15, 2007, thru
Friday, November 16, 2007, at 8:30 A.M. each day.

Marriott Hotel
500 E. Hill Avenue SE
Knoxville, TN 37915


MIDDLE TENNESSEE
Nashville, TN
Tuesday, November 27, 2007, thru
Wednesday, November 28, 2007, at 8:30 A.M. each day.

Please note Nashville is scheduled on Tuesday/Wednesday.

Willis Conference Center
26 Century Boulevard
Nashville, TN 37214


WEST TENNESSEE
Memphis, TN
Thursday, December 6, 2007 thru
Friday, December 7, 2007 at 8:30 A.M. each day.

Cook Convention Center
255 North Main Street
Memphis, TN 38103

You can register for the program here.

Seminar registrants will also save $25.00 of the price of my new book, Dayontorts:  A Handbook for Tennessee Tort Lawyers.  The book will be available at the seminar.  Read more about the book here.

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To what extent are we our brother's keeper?   That is a constant question posed in cutting edge tort cases, and this case in Illinois is no exception.

Iseberg sued his two partners because they failed to warn him that a fourth partner, Slavin, had made threats against Iseberg's life.  Iseberg was a man of his word:  he shot Iseberg and rendered him a paraplegic.

From the opinion of the Illinois Supreme Court:

"This case presents a question of “duty” in its most basic or 'primary' sense, i.e., duty as obligation. See Marshall, 222 Ill. 2d at 436, citing J. Goldberg & B. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54 Vand. L. Rev. 657 (2001). What we must decide is whether Iseberg and defendants stood in such a relationship to one another that the law imposed on defendants an obligation of reasonable conduct for the benefit of Iseberg. Bajwa, 208 Ill. 2d at 421-22; Bucheleres v. Chicago Park District, 171 Ill. 2d 435 (1996). Under common law, the universally accepted rule, articulated in section 314 of the Restatement (Second) of Torts, and long adhered to by this court, is that a private person has no duty to act affirmatively to protect another from criminal attack by a third person absent a “special relationship” between the parties."

Here is how the Court resolved the issue:

"The no-affirmative-duty rule and the “special relationship” doctrine stand as the law of this state. Accordingly, an affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship between them. In the case at bar, no such relationship existed between the defendants and Iseberg. Nor was it shown that a principal-agent relationship existed between the parties which gave rise to a duty to warn as provided in section 471 of the Restatement (Second) of Agency. For these reasons, we affirm the judgment of the appellate court."

This opinion does a nice job of discussing the law of duty and is a good refresher course on the subject, even for those of us in Tennessee.

The case is Iseberg v. Gross, Docket No. 103332. ( Ill. S. Ct. October 10, 2007).  Read the opinion here.

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Day on Torts:  A Handbook for Tennessee Tort Lawyers 2008 is at the printer.  The printing date is October 18 and the books should be delivered to Brentwood on October 23, 2007.

You may recall that the book will be updated during the year via a website called "dayontortsbook.com."  I have seen the mock-up of that site - the folks at Justia did a great job on it.  (Justia also developed our firm's website - www.dayblair.com.  These folks are extremely competent and I really enjoy working with them.) It will be available for public viewing by the end of the month.

Part I of the book is called "Leading Tennessee Tort Cases by Subject."  It contains detailed summaries of 233 cases on 233 tort law subjects.  It also contains citations to well over 1000 additional cases.  Here is the table of contents to this section of the book.

Download file

Next week I give you access to a sample chapter.

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Yesterday afternoon I attended the funeral of Judge Bill Cain of Columbia.

Judge Cain served on the Court of Appeals and had served as a trial judge.  He was a lawyer who loved the law and loved to discuss the subject.  He prided himself on his ability to dive into the books and find the answer to a problem, and was justified in his pride.  We debated many tort law subjects over the years and I found him to be a worthy adversary, someone who not only knew the law but understood why the law was the way it was.  

Judge Cain despised the phrase "reasonable degree of medical certainty" and did his best to relegate it to the ash-heap of history.  He thought the "locality" rule in medical malpractice cases was assine, but applied it because he was duty-bound to do so.  He applied to plaintiffs and defendants, and in fact reversed a jury verdict for the defendant in a Clarksville case because the defendant's experts did not know the local standard of care.

It just hit me that the word "duty-bound" sums up Bill Cain pretty darn well.  He was a man of honor who was blessed with the intellect to be a lawyer, and used his talents to serve his fellow man as a soldier, lawyer, and judge.  He believed it doing the right thing - it was his duty.

So, Moses, if you happen to be reading this let me give you fair warning:  Bill Cain is there, ready to talk a little law.  He isn't going to give you any trouble on your Top Ten list, but anything else is fair game.  I suggest your familiarize yourself with a dude named Blackstone, because Bill will refer to him frequently.

Goodbye, Bill.  Thank you for your friendship and your many contributions to the law of Tennessee.

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I have told you in the past that I love Blog 702.  It is a blog of substance, written by someone who knows what they are talking about and who is willing to share what they know.

The authors of Blog 702 have started a series about the concept of "reasonable degree of medical certainty."  Here are the first few paragraphs"

Quite some time ago now, we promised to respond to a Beck & Herrmann post decrying an ALI proposal to abolish any requirement that experts offer their opinions to a “reasonable degree” of medical, professional, or scientific “certainty.” (Call this the “RDC” rule for short.) The ALI proposal would abrogate any RDC requirement and demand only that the expert hold his or her opinion to be more likely true than not -- at least in the context of opinions offered to prove causation in tort cases involving physical harm.

Beck & Herrmann attempt to rebut three arguments offered by the ALI in favor of abandoning any RDC requirement: (1) that the medical and scientific communities have no such “reasonable certainty” standard; (2) that the requirement imposes a more demanding standard for admissibility than the law imposes for satisfaction of the burden of persuasion in civil cases; and (3) that the RDC standard affords no effective guarantee of the soundness of the expert’s analysis.

We’ll respond to Beck & Herrmann’s specific critiques of the three ALI arguments in a second installment. In this first post, we will: (a) discuss how the RDC rule appears to have originated; (b) attempt some description of the demands it may currently impose; and (c) consider some of the functions it might aspirationally perform.

To read the rest of Part I, go here and scroll down to "Beck & Herrmann on 'Reasonable Medical Certainty': Part I" on June 22, 2007.

Thanks to Peter B. Nordberg at Berger & Montague for sharing.

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OK - the Pats got hit with a fine - $250,000 for the team and $500,000 for the coach - for cheating in professional football.  They also face a loss of a draft pick or picks, depending on how they finish this season.

It's not enough.

I want to know if this is an isolated event or, if not, how long have they been cheating.  The coach implied that he mis-interpreted the rules.  How long has he been running his team under this misunderstanding?  Did their misconduct help them win any of the three Super Bowls in the last three years?  If so, take the prize money back and pull the rings off the fingers of every coach aware of the practice.  And put an asterick next to their name in the record books - *Cheaters.

I would say the same thing if Jeff Fisher had done  it - we don't need people who cheat in the NFL.  Or in our courtrooms.

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I  did not post for two days in a row and received four inquires about the state of my health.

I am alive.

I am in a middle of finishing a project that I will tell you more about next week.  Today I will be consumed with four depositions and a meeting with a new client on what looks like a great products case against an automobile manufacturer.   We are also filing two new cases today in Knoxville, a products case in federal court and a road construction / signage negligence case in state court.  It has been more than the ordinary flurry of activity at Day & Blair this week, but I am scrambling to get everything done so that I can relax at the Titans-Colts game Sunday afternoon.

Thanks for the inquiries. 

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They have broken the $1000 per hour barrier in New York.  

Of course, Gary Brewer and Steve Terry were charging that four years ago in Bulls Gap.

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My wife Joy and I are pleased to announce the birth of our daughter, Kaitlin Irene Day, yesterday at 2:41 p.m. at Baptist Hospital in Nashville.  Kate weighed in at an unbelievable 10 pounds, 9 1/2 ounces and is 21 an 3/4 inches long. 

She began riding a tricycle last evening.

Kate and Joy are doing great.  We are very blessed to have had an incident-free pregnancy followed by the delivery of a healthy, beautiful baby girl.  Indeed, this is the third time I have been blessed with a strong, healthy child - Sarah was born 16 years ago and Michael 12 years ago. 

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I wrote on July 30  about a decision from the 10th Circuit Court of Appeals that addressed the issue of the effect of the failure of a plaintiff in a personal injury action to disclose the existence of the claim on a bankruptcy petition and the failure to disclose the claim during a hearing.

Tennessee Court of Appeals Judge Sharon Lee wrote to tell me about a decision from the Tennessee Court of Appeals (Eastern Section) that addressed the interaction of bankruptcy law and personal injury claims.  Here is the summary paragraph in Headrick v. Bradley County Memorial Hospital  written by Judge Lee:

"In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed."

Want to read the entire opinion in Case   No. E2005-00925-COA-R3-CV released January 31, 2006?   Click here.

Thanks for refreshing my recollection, Judge Lee.  And thanks for reading.

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Judge Keeton, co-author  of Prosser and Keeton on Torts, died July 1, 2007 in Cambridge, Massachusetts.    Keeton was a professor at Harvard and later became a federal district judge.  He was 87.

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Investigations following the collapse of the bridge in Minneapolis will tell us how it occurred and whether anyone bears responsibility for the failure. 

In Tennessee, it would be very difficult for a case to be brought the most obvious potential defendants.  Our state and local governments have a damage cap that make it impossible to economically pursue claims after such a disaster.  Our "architects, engineers and contractors immunity act" make it impossible for them to be held responsible more than four years (ok, four plus one years) after construction (absent a showing of fraud).  Our products liability act gives manufacturers of any component parts a get-out-of-jail-free after ten years. 

Of course, perhaps contractor(s) working on the bridge at the time may be found to have some fault and perhaps a private firm did an inspection and did not perform it carefully - the facts will trickle out over the next few days.   But in Tennessee the ability of these potential defendants to assert fault against the potential defendants mentioned above and have that fault reduce the recovery of the plaintiff (the magic of several liability and allowing fault to be placed on immune non-parties) make these cases a challenge, too. 

Could this happen in Tennessee?  Check out this information from today's Tennessean:  "Of the 19,519 public bridges in Tennessee, 1,202 are considered "structurally deficient" and 2,938 are considered "functionally obsolete," by the Tennessee Department of Transportation. That's about 22 percent of all the bridges in the state."

Here is a list of bridges by county that describes the state of repair of each.  In my county, Williamson, one of structurally deficient bridges has a traffic county of over 62,000 vehicles a day.  I drive over that bridge a couple times a month.  Tell me:  how do I protect myself against this risk?

UPDATE:   I just heard a report that the cost of repairing all of the structurally deficient bridges in the USA would be $65B.   That is equivalent to  six - nine months of the cost of the war in Iraq.

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This post has nothing to do with torts, except perhaps the tort of outrage.  But I read about this op-ed piece in Trial Ad Notes, and thought that at least some of you would enjoy it.

John Koppel, who has served at the Department of Justice for over 25 years, doesn't like what is going on there.  Not one bit.  And he is naming names.

He ends his remarks with these words:  " I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk."

Read the piece here.

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It is not uncommon for plaintiffs in personal injury cases to get into financial problems.  Medical bills need to be paid and the injured person's income is often disrupted and may be nonexistent.

But, this opinion makes it clear that the failure to disclose the existence of the pending personal injury suit can result in its dismissal.  In Gardner v. Union Pacific Railway Co., No. 05-8106 (10th Cir. July 6, 2007) the plaintiff failed to disclose his pending personal injury suit filed under the Rail Road Workers' Compensation Act in his post-accident bankruptcy and failed to tell the truth about the lawsuit in a meeting of creditors.  He received a discharge of his debts under Chapter 7 of the Code.

Almost a year later plaintiff's personal injury attorney became aware of the filing and notified the bankruptcy trustee, who in turn moved to re-open the bankruptcy and list the pending case as an asset.  The defendants in the personal injury case got involved before the federal district court and asked the court to dismiss the case the grounds of judicial estoppel.  The federal district judge agreed, saying "[w]hat the Court finds most telling . . . is the fact that when given the opportunity at the meeting of creditors to reveal the pending litigation, Mr. Gardner did not disclose his personal injury action. First, he explicitly denied having a personal injury action pending. Second, his attorney represented that the claim was not workers’ compensation “per se,” but indicated that any claim was related to an on-the-job injury, leading the Trustee to believe that the claim was similar in nature to a workers’ compensation claim. Third, Mr. Gardner’s attorney referred to UPRR’s failure to provide hearing aids to Mr. Gardner, misrepresenting the extent of the claims involved. Mr. Gardner had an affirmative duty to speak up and let the trustee know the nature of his lawsuit against UPRR as well as eight other defendants. . . ."

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The Tennessee Supreme Court will hear arguments in the following cases that are of interest to tort lawyers in Knoxville on September  6:

Konvalinka v. Chattanooga-Hamilton County Hospital Authority - (Swiney, author) (Susano & Lee) -
1. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt without any evidentiary hearing;
2. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt when case law supports a separate request for documents pursuant to a statute not being in violation of a stay of litigation.
3. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt for pursuing a Tennessee public records act request when only lower court proceedings in the Stratienko action were stayed, and not a separate action to enforce the right of access to public documents.
4. Whether the Court of Appeals erred finding contempt when counsel acted in good faith and reasonably interpreted the stay order at issue pursuant to existing law.
5. Whether the Court of Appeals erred in not remanding this matter for production of the requested documents, and in not awarding attorney's fees pursuant to the valid public records act request.


Tenn. Farmers Life Reassurance Co. v. Rose - (Susano) (Franks, concurring;
Swiney, dissenting)
1. Whether the C/A erred in affirming the Trial Court's grant of summary judgment by concluding that the attorney in fact under the durable general power of attorney did not have the specific authority to execute an effective life insurance change of beneficiary form, notwithstanding the
fact that the power of attorney specifically authorized the attorney in fact to "transact all insurance business", to "take any other action necessary or proper in this regard . . .", and to "execute and perform all and every act and thing whatsoever without limitation whatever and without being confined to the specific acts hereinabove set out . . . ."


Michael Hannan et al v. Alltel Publishing Co., et al. (Susano,
author) (Franks & Swiney)
1. Whether the Court of Appeals erred in holding that the Applicants' motion for summary judgment failed to negate an essential element of the Respondents' breach of contract claim and in vacating the trial court's grant of summary judgment?

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Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I are sponsoring our annual "Justice Programs" seminars again this Fall.  Here is the schedule  for this two-day, fifteen-hour program.

First Day

8:00 - 8:30 Registration
8:30 - 10:15 Tort Law / Comparative Fault
10:15 - 10:30 Break
10:30 - 11:30 Dealing with Difficult Judges
11:30 - 12:15 U.S. Supreme Court Review
12:15 - 1:15 Lunch on your own
1:15 - 2:30 Tort Law / Comparative Fault (cont'd)
2:30 - 2:45 Break
2:45 - 4:15 Evidence in the Trenches
4:15 - 4:30 Break
4:30 - 5:45 Business Torts - The State of Tennessee's Law

Second Day

8:00 - 8:30 Registration
8:30 - 10:15 Significant Recent Cases / Legislation
10:15 - 10:30 Break
10:30 - 11:30 Civil Procedure Update
11:30 - 12:15 Criminal Law - For All Lawyers
12:15 - 1:15 Lunch on your own
1:15 - 2:45 Ethics / Professionalism
2:45 - 3:00 Break
3:00 - 4:30 Ethics / Professionalism
4:30 - 4:45 Break
4:45 - 5:45 Ethics/Professionalism

Once again, the program will be held in the four largest cities of the state.  Here is a list of the dates and locations.

EAST TENNESSEE
Chattanooga, TN
Thursday, November 8, 2007, thru
Friday, November 9, 2007, at 8:30 A.M. each day.
Chattanooga Convention Center
1150 Carter Street
Chattanooga, TN 37402

Knoxville, TN
Thursday, November 15, 2007, thru
Friday, November 16, 2007, at 8:30 A.M. each day.
Marriott Hotel
500 E. Hill Avenue SE
Knoxville, TN 37915

MIDDLE TENNESSEE
Nashville, TN
Tuesday, November 27, 2007, thru
Wednesday, November 28, 2007, at 8:30 A.M. each day. Please note Nashville is Tuesday/Wednesday.
Willis Conference Center
26 Century Boulevard
Nashville, TN 37214


WEST TENNESSEE
Memphis, TN
Thursday, December 6, 2007 thru
Friday, December 7, 2007 at 8:30 A.M. each day.
Cook Convention Center
255 North Main Street
Memphis, TN 38103

We have been honored to have our attendance increase substantially every year.  We hope to see you this year.

Register  for the seminar here. 

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I have been in Chicago for the last four days, attending the Board meeting of the National Board of Trial Advocacy and spending time with my son , MIchael.  We saw the Cubs beat the Astros Saturday afternoon and took in a street fair in Chinatown yesterday.  It was a great trip.

I apologize for the problem with the links to the last few posts.  I have brought the issue to the attention of my service provider and assume that it has been fixed.

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You know the general rule: absent a special relationship, one person does not have a duty to come to the aid of another.  You can see someone drowning, calling out for help, and simply walk by listening to your Ipod and taking a another lick of your Maggie Moo's ice cream cone.  These is true even if you are a world-champion swimmer trained in life-saving. 

The Superior Court, Appellate Division, of New Jersey recently faced an issue of whether two passengers in a car had a duty to aid a motorcycle rider who had been hit by the intoxicated driver of their car who was either unwilling or unable to come to the motorcyclist's aid.  The three men stopped after the incident, saw the injured man, and left the scene without offering or calling for assistance.   (The three had cell phones with them.) The driver's car broke down shortly thereafter, and the passengers fled the scene leaving the driver behind waiting for his girlfriend to pick him up.  The passengers told the driver not to tell anyone that they had been present.  The motorcyclist was left on the road, was hit by a car and died.

The trial judge dismissed a case brought against the auto passenger's by the administrator of the motorcyclist's estate.  The Appellate Division reversed, in a fascinating opinion that takes the reader back to Torts 101.    A brief excerpt:

"Governed by these principles, we are satisfied that the summary judgment record admits of sufficient facts from which a reasonable jury could find defendants breached a duty which proximately caused the victim's death. In the first place, the risk of harm, even death, to the injured victim lying helpless in the middle of a roadway, from the failure of defendants to summon help or take other precautionary measures was readily and clearly foreseeable. Not only were defendants aware of the risk of harm created by their own inaction, but were in a unique position to know of the risk of harm posed by Mairs' [the drivers'] own omission in that regard, as well as Mairs' earlier precipatory conduct in driving after having consumed alcohol. Even absent any encouragement on their part, defendants had special reason to know that Mairs would not himself summon help, but instead illegally depart the scene of a hit-and-run accident, N.J.S.A. 39:4-129; see also N.J.S.A. 39:4-130, either intentionally or because of an inability to fulfill a duty directly owed the victim, thereby further endangering the decedent's safety.

Juxtaposed against the obvious foreseeability of harm is the relative ease with which it could have been prevented. All three individuals had cell phones and in fact used them immediately before and after the accident for their own purposes, rather than to call for emergency assistance for another in need. The ultimate consequence wrought by the harm in this case – death – came at the expense of failing to take simple precautions at little if any cost or inconvenience to defendants. Indeed, in contrast to Mairs' questionable ability to appreciate the seriousness of the situation, defendants appeared lucid enough to comprehend the severity of the risk and sufficiently in control to help avoid further harm to the victim. In other words, defendants had both the opportunity and ability to help prevent an obviously foreseeable risk of severe and potentially fatal consequence.

In our view, given the circumstances, the imposition of a duty upon defendants does not offend notions of fairness and common decency and is in accord with public policy. As evidenced by the grant of legislative immunity to volunteers afforded by the Good Samaritan Act, N.J.S.A. 2A:62A-1, public policy encourages gratuitous assistance by those who have no legal obligation to render it. Praet, supra, 218 N.J. Super. at 224. Simply and obviously, defendants here were far more than
innocent bystanders or strangers to the event. On the contrary, the instrumentality of injury in this case was operated for a common purpose and the mutual benefit of defendants, and driven by someone they knew to be exhibiting signs of intoxication. Although Mairs clearly created the initial risk, at the very least the evidence reasonably suggests defendants acquiesced in the conditions that may have helped create it and subsequently in those conditions that further endangered the victim's safety. Defendants therefore bear some relationship not only to the primary wrongdoer but to the incident itself. It is this nexus which distinguishes this case from those defined by mere presence on the scene without more, and therefore implicates policy considerations simply not pertinent to the latter."

The Court also found potential liability under the Restatement (Second) of Torts, § 876 (1979), which provides as follows:

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him [conspiracy], or (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself [aiding-abetting], or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."

This opinion is a must-read.  Find Podias v. Mairs, DOCKET NO. A-6312-05T5 (N.J. Sup. App. Div.  June 26, 2007) here.

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The General Assembly has approved changes to the Rules of Evidence, the Rules of Civil Procedure, and the Rules of Appellate Procedure.

Perhaps the most significant change for practicing lawyers is the amendment to Rule 15 of the Rules of Civil Procedure, which provides that "For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required." 

All changes are effective July 1, 1007.

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Robert Bork, the man who gave us the verb "borked," has sued The Yale Club in a trip-and-fall case.  Read the NYT article about the case here.

Here is a copy of the complaint.  Note that Judge Bork seeks punitive damages.  I guess that it possible that conduct in a premises case like this can give rise to punitive damages, but it is difficult for me to imagine what that conduct would be.  He also seeks attorneys' fees, which I did not think were recoverable in premises liability cases in New York.  Then again, I'm just a tort lawyer who went to public school.

His law firm?  Gibson Dunn, a great firm that is known for, among other things, its advocacy against punitive damages.

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Man sues claiming that an energy drink gave him an erection that would not subside.

The drink is called "Boost Plus."

For a list of dealers near you,  please call 1-800-4StickUp.

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Never tell a judge that she is "a few fries short of a Happy Meal."

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I have been in mediations the last two days and have two depositions in a very significant case today.  Therefore, I simply do not have time to do a substantive post.

I will take time to say one thing, however.  This is my 1000th post on this blog.  1000 posts in 27 months.   I must say that I have enjoyed every minute of it. 

I hope that this blog has helped you better serve your clients.  I know that writing it has helped me serve our firm's clients. 

Thanks to each of you who take time out of your busy day to join me (and hundreds of other lawyers)at this site. 

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Among the actions taken by the ALI at the meeting in San Francisco this past week was the rejection of the need for the magic words "reasonable degree of medical certainty."

The following language was approved for Section 28(a)  of the Restatement of Torts Third:

"Subject to Subsection (b), the plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's physical harm."

Subsection (b) describes the circumstances under which  the burden of proof is shifted to the defendants.

Comment (e) rejects the need for an expert to state an opinion to a "reasonable degree of medical [or scientific] certainty" or a "reasonable degree of medical [or scientific probability."    The Comment states that "[t]here is a troubling inconsistency in imposing a higher threshold for the admissibility of expert testimony than is required for a party to meet the burden of proof" and that "the reasonable-certainty standard provides no assurance of the quality of the expert's qualifications, expertise, investigation, methodology, or reasoning." 

The Reporter's Note cites with approval Judge Cain's opinion in Bara v. Clarksville Mem'l Hospital Sys., Inc., 104 S.W.3d 1 (Tenn. App. 2002) ( holding instruction to the jury requiring plaintiff to prove causation to reasonable degree of medical certainty was erroneous and required reversal.).

 I tremendously enjoyed my first ALI meeting but I must say that six days in San Francisco is enough for me.  I love the city but was very happy to get home last night and sleep in my own bed in my own home in the country, far from the constant sound of traffic and sirens and the constant flow of people.

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I am still in San Francisco at the ALI meeting.  Last night we had a reception at the Legion of Honor and then dinner at the Boulevard.

On today's agenda are discussions of proposed restatements on the law of nonprofit organizations, aggregate litigation (class actions) and restitution and unjust enrichment.  Tonight is a black tie dinner at the Westin St. Francis.

There is one custom at this meeting that I have never seen at any meeting of lawyers I have ever attended.  There are scores of  federal and state judges here, but none of the name tags identify the judges as judges.  Yesterday I was talking to the Chief Justice of New Zealand and had no idea that she was a judge. 

I am expecting some interesting discussion during the aggregate litigation review today.  This is a subject where passions tend to run high and my guess is the discussion will be a little more heated than that of yesterday.

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I am in San Francisco attending my first meeting as a member of the American Law Institute. 

Yesterday I attended a meeting of the Members Consultative Group for the Restatement Third, Economic Torts and Related Wrongs.  We spent two hours debating five black-letter law sections of a draft of the restatement, including a very interesting discussion of the law of damages.  Last night there was a dinner for the first-year members at the R & G Lounge and then several of us went to the Buena Vista Cafe for Irish coffee.

This morning we will hear speeches by the Chief Judge of the Ninth Circuit as well as the President and President-Elect of the ABA.  Later today there will be floor discussions about changes in the restatements in the fields of software contracts and international intellectual property.

Formal work ends at 4:45 and then we are off to the Legion of Honor for a reception.

There is nothing like being in San Francisco and sitting in a windowless hotel conference room talking about software contracts.  Even though I am an old man I still know how to party!

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Some of you have looked at the upper right-hand corner of this blog and noticed that our firm name has changed to Day & Blair, P.C.  Those of you on our announcement list received a more formal notice last week.

What's going on?  John Branham, the gentleman I started the firm with in 1993, turned 65 last fall and decided to leave the firm at the end of the year. Rebecca Blair, who has been a shareholder of the firm for several years, has now became a name partner in the firm.

We are in the same location, have the same phone number and, with a couple of exceptions, the same personnel we had four months ago.  Regrettably, we are losing a lawyer in a couple days.  Jimmy Streett, who clerked with us as a rising third-year student and has been with us since his graduation from Vanderbilt two years ago, is moving home to Arkansas to take over his father's law practice.  Jimmy has done a very good job for our clients and we will miss him.

So, we have a new name, a new logo, a new website and a new slogan - Helping Our Peers Help Their Clients.  The slogan signifies what we do - make ourselves available to lawyers who have conflicts or for one reason or another would like to associate us in a civil litigation matter.  We also try to help our peers through our extensive speaking and writing efforts (including this blog) and my work on Capitol Hill.

I am confident that the next 14 years will be as fun and rewarding as the last 14.

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Is this the worst lawyer ad of the year?

I hope so.

Here is the owner of  the offending law firm. 

I am sure she is proud of herself - she has managed to accomplish in one ad what she apparently cannot establish by her work product.  Fame.

I hope she enjoys all fifteen minutes of it, and then begins to realize what she has done to whatever reputation she had.

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The Tennessee Supreme Court hears oral arguments in Nashville on June 5, 6 and 7.  Here is a list of the tort cases which will be heard and the issues to be determined in each case:

* Simpson Strong-Tie Company v. Stewart, Estes, & Donnell - Rule 23 Middle District Court of TN - Certified Question

1. Does the absolute litigation privilege apply to communications made preliminary to a proposed judicial procedure, where such communications are directed at recipients unconnected with the proceeding in hopes of soliciting them to become parties to it?

* Owens v. National Health Corporation, et al.

1. Whether the Court of Appeals correctly held that a durable power of attorney for health care granted the attorney-in-fact authority to waive the principal’s right to a trial by jury and to bind the principal to mandatory arbitration.
2. Whether the C/A correctly dismissed Plaintiff’s challenges to the arbitration clause without remanding the case for discovery.
3. Whether the C/A correctly held that the arbitration clause at issue does not violate federal law.
4. Whether the C/A correctly held that the arbitration clause was enforceable even though a material term of the contract for arbitration was incapable of performance.

* Health Cost Controls v. Ronald Gifford

1. Whether the Court of Appeals erred in holding that the insured had been made whole and therefore owed reimbursement to the insurer?  (Continued from Jackson)

* Miller v. Dacus - (Rule 23 Certified Question from the Sixth Circuit)

1. Whether a child born alive has an independent cause of action for injuries allegedly caused by the failure of a physician to obtain informed consent from the child’s mother during labor and delivery?
2. If the answer to question 1 is “Yes,” whether the minority provision of Tennessee’s legal disability statute, Tenn. Code Ann. § 28-1-106, tolls the medical malpractice statute of repose, Tenn. Code Ann. § 29-26-116(a)(3), as applied to a fetus’s lack of informed consent claim?

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Each year the Chamber of Commerce surveys corporate general counsel and "senior litigators" to "to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business. "

The bottom line from the executive summary:  "There has been an improvement in how the senior attorneys surveyed view the state court liability system, with a net increase of 25 percentage points between 2003 and 2007 in those indicating the system is excellent or pretty good. Further, a majority (57%) report that the litigation environment in a state is likely to impact important business decisions at their company, such as where to locate or do business." 

And how did Tennessee rank?  Number 7, enough to earn it a "Best" ranking. 

Am I the only one to notice the similarity between our ranking in this study and the number which appears on every bottle of Jack Daniel's?

Well, it is comforting to know that we enjoy a top ranking after being near the bottom of the barrel on so many other lists. 

The good news is that this report will end all lobbying on tort reform in Tennessee.  Indeed, consumers and the trial bar can use it to actually bring about some modest reforms.

Yeah, right.

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Florida's Supreme Court has put its foot down on judges and clerks that seal records.  It has adopted  interim amendments to Florida Rules of Judicial Administration 2.240 to articulate the circumstances under which court fiings can be kept secret from the public.

The Court describes the amendments as requiring the following:

1. A request to make court records in noncriminal cases confidential must be made by written motion.  [Note: an Agreed Order will not work.]
2. A public hearing must be held on any contested sealing motion and may be held on certain uncontested sealing motions.
3. A sealing order issued by a court must state with specificity the grounds for sealing and the findings of the court that justify sealing.
4. All sealing orders must be published to the public.
5. A nonparty may file a motion to vacate a sealing order.
6. A public hearing must be held on any contested motion to vacate a sealing order and may be held on certain uncontested motions to vacate.
7. A court may impose sanctions on any party who files a sealing motion without a good-faith basis and without a sound factual and legal basis.
8. Most significant for our purposes here, by mandating that the case number, docket number, or other identifying number of a case cannot be made confidential, the removal from public view of all information acknowledging the existence of a case is expressly not allowed.

The Court's Order may be read here.  The text of the interim rule begins on page 19.

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I have been in Destin the last few days.  KATA and TTLA had a joint seminar at the Hilton.  I spoke Tuesday morning, had dinner with friends last night, and came back today.

Back to work!

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Slate has published this article about Monica Goodling and the Regent University School of Law. 

Did you know that "[u]nder Ashcroft, career lawyers were systematically fired or forced out and replaced by members of conservative or Christian groups or folks with no civil rights experience. In the five years after 2001, the civil rights division brought no voting cases on behalf of African-Americans. It brought one employment case on behalf of an African-American. Instead, the division took up the "civil rights" abuses of reverse discrimination—claims of voter fraud or discrimination against Christians."

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Poor Comcast.  With its blood-sucking monopoly threatened by pending legislation it (a) decides to lower prices; (b) promise that all future employees will have no less than a room temperature IQ; or (c) have technical problems and not broadcast the Lady Vols National Championship basketball game in Williamson County?

It chose (c).

Apparently the Bush Administration has nationalized Comcast and is bringing all of its management skills to bear in running the organization.  The good news is I now know where to address my complaint letter.

Dear Rummy: 

I knew you would find a job.  ... 

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The Beasley Allen law firm summarized a report on the number of civil jury trials in Alabama.  Here is my summary of their summary concerning civil jury trials in 2006:

Motor Vehicle Negligence Cases:  126 trials    Verdict for plaintiff - 59

Products Liability Cases:  6 trials         Verdict for plaintiff - 3

Medical Negligence Cases:  32 trials       Verdict for plaintiff - 4

Premises Liability Cases:  16 trials          Verdict for plaintiff - 8

Defamation Cases:  3 trials          Verdict for plaintiff - 3

Retaliation in Employment Cases:  12 trials           Verdict for plaintiff   7

Malicious Prosecution Cases - 3 trials               Verdict for plaintiff 1

(There were also 23 UM cases, 15 civil rights, five assault and 1 dram shop case tried to a jury).

It is a great time to be a defense lawyer.       

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The highest court in Maryland has ruled that the economic loss doctrine did not bar a lawsuit against General Motors alleging that their front seats were unsafe because they collapsed rearward in rear-impact collisions.  The claimants sought recovery of the cost of repairing the seats.

A quick summary of the 69-page opinion:  "Maryland has joined those jurisdictions that recognize an exception to the rule which bars economic loss in tort. As we have seen, the reasoning behind the exception is that the likelihood is so great that severe bodily harm or death will result from the product defect, that we substitute actual present injury or product malfunction with the cost to repair the problem. Assuming that plaintiffs can adequately prove the substantive elements of their claims and objectively quantify the measure of their damages, Maryland has determined that the exception to the economic loss rule advances the practical goal of providing a remedy before the significant loss of life o r limb. To b e sure, in light of the general distaste for aw arding eco nomic losses in tort, if a petitioner has presented enough facts to qualify for the exception to the rule, then he or she has surmounted the grea test hurdle for pleading injury and this court cannot fathom why such economic losses would not qualify as a sufficient injury, or in the case of the Consumer Protection Act, loss for the purpose of pleading those claims."

The case is Lloyd v. General Motors Corp., No. 10 (Md. Ct .App.Feb. 8, 2007).  Read it here.

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Watch this story  from the Washington Post increase the heat on the Justice Department, folks.  There will be hearings on this, without a doubt.

A sample:  "The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government's racketeering case.

Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales's office began micromanaging the team's strategy in the final weeks of the 2005 trial, to the detriment of the government's claim that the industry had conspired to lie to U.S. smokers.

She said a supervisor demanded that she and her trial team drop recommendations that tobacco executives be removed from their corporate positions as a possible penalty. He and two others instructed her to tell key witnesses to change their testimony. And they ordered Eubanks to read verbatim a closing argument they had rewritten for her, she said.

'The political people were pushing the buttons and ordering us to say what we said,' Eubanks said. 'And because of that, we failed to zealously represent the interests of the American public.'

,,,

'Political interference is happening at Justice across the department,' she said. 'When decisions are made now in the Bush attorney general's office, politics is the primary consideration. . . . The rule of law goes out the window.'"

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Tony Snow has a different opinion about the use of the "executive privilege" defense today than he did almost a decade ago.

Here is a sample from the folks at The Swamp: ""Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration,'' the columnist wrote. "Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything.''

Read it all here.

Of course, that was written in the last century.

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Cardinal Mahoney from LA.  You read the story from the LA Times and decide for yourself.

An excerpt:  "In a letter to then-Cardinal Joseph Ratzinger before Ratzinger became pope in April 2005, Mahony said [Father] Caffoe had videotaped "partially naked" boys in a state of sexual arousal. The tape was "objective verification that criminal behavior did occur," Mahony wrote, according to papers filed last week in Los Angeles County Superior Court in a lawsuit by four plaintiffs who allege that Caffoe abused them.

In October 2005, in what Mahony told parishioners was the "fullest possible disclosure" about the scandal, he reported that a videotape had been discovered in 1992 in Caffoe's bedroom, depicting "improper behavior" with high school boys. But the cardinal said the boys were "fully clothed" and there was no sexual activity."

Registration is required.  It is worth the effort.

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I am pleased to report that this blog received its 500th comment the other day.   We are approaching 1000 posts, a milestone that will be reached in June.

This blog began in February 2005.  I truly enjoy writing it and wish I had even more time to devote to it. 

Thank you for your wonderful comments and your words of encouragement.  Please let me know what topics you would like me to cover more frequently and I will do my best to accomodate you.

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The President's daughter Jenna has written a book that she "very, very modestly" hopes will have the influence of  Anne Frank's The Diary of Anne Frank.

Like Jenna, I too find myself tightly bound by humility.  Her willingness to reveal her hopes despite her extreme modesty  compel me to reveal one of my own hopes:   that this blog will have the influence of the Declaration of Independence.

There.  I said it.  I feel better already.   Many of you plaintiff's lawyers simply cannot comprehend the burden of  being "very, very modest."  Indeed, I felt extreme anxiety for weeks calling this blog "Dayontorts"  and took this step only after discovering, much to my dismay, the "Humbleontorts" was not available.

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Texas has a rule that permits presuit depositions to be taken, not just be preserve testimony but also to do discovery to determine the merits of a claim before filing suit.

Professor Lonny Hoffman has written about the subject.  Here is an abstract of the article:

"What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another. The ability of private parties to compel the production of information, documents or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Beyond the lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or those most closely involved in civil procedural reform to gather empirical evidence to try to fix how important to the institution and maintenance of civil suits is the right to take presuit investigatory discovery. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state's presuit discovery rule, most likely on the order of approximately one out of two lawyer and judge respondents reporting at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately 60% of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining 40% of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements to bringing suit, as well as the pull of practical considerations, may plausibly explain the incidence of use of the state's presuit discovery rule. Read in this manner, the empirical evidence suggests an important relationship exists between access to information and access to justice."

Texas Rule Of Civil Procedure 202 is discussed it detail.  It provides that a person "may petition the court for an order authorizing the taking of a deposition on oral examination or written questions either: (a) to perpetuate or obtain the person's own testimony or that of any other person for use in an anticipated suit; or (b) to investigate a potential claim or suit."  The Tennessee rule (Rule 27) has a much narrower purpose; it provides that that "[a] person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of Tennessee" may seek permission to take a pre-uit deposition.

Read the article itself here at SSRN. 

Should the Texas Rule be adopted in Tennessee?  Would it reduce the number of cases being filed when facts needed to evaluate the case are solely in the possession of an adverse party? 

Thanks to Trial Ad Notes for informing me about this article.

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The Tennessee Supreme Court will hear the following tort cases in Jackson in April:

Dewayne E. Holloway v. State:    Whether the Claims Commission lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(E) to adjudicate the plaintiff’s wrongful death claim. 

Troup v. Fischer Steel Corporation:   Whether the Court of Appeals erred in (reversing the trial court and) determining in this negligence action in which the employee of a roofing subcontractor, from which the employee has received workers’ compensation benefits, sues a steel subcontractor, the jury may assign fault to the general contractor, which is a “statutory employer” but did not pay any workers’ compensation benefits.

Health Cost Controls v. Ronald Gifford:  Whether the Court of Appeals erred in holding that the insured had been made whole and therefore owed reimbursement to the insurer?

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Charlie Weis, head football coach at Notre Dame, sued two doctors in connection with injuries he received following gastric bypass surgery.  The trial in underway in Boston.

He alleges that he suffered internal bleeding after the procedure and that his doctors failed to promptly correct it.  The doctors say that internal bleeding is a known, disclosed risk of the procedure and that they did not move more aggressively to correct the condition because of the risk of pulmonary embolus.

Read more here.  Weis testified yesterday.

Weis was in a coma for two weeks following the incident.  I cannot find any article that indicates what long-term problems, if any, he is having as a result of the alleged error.

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Business Tennessee magazine has released its list of the 150 best lawyers in Tennessee.  Here is the list by area of practice.

These lists come out from time to time and I am always surprised to see that some lawyers I think are just fantastic are not included.  I don't know exactly how the process works but I am honored to be included on the list again this year.

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I was in Knoxville yesterday and had the opportunity to talk with my friend Howard Vogel and his son Alex.  We were talking blogs (the three of us make a fun group, don't we?) and Howard or Alex asked what blogs I regularly read.

I thought I would share the list. 

What About Clients?

Evan Schaeffer's Legal Underground

Appellate Law and Practice

Torts Prof Blog

Abstract Appeal

South Carolina Trial Law Blog

Blog 702

Wall Street Journal Law Blog

Illiniois Legal Malpractice Blog

Tennessee Business LItigation Law Blog

Tennessee Medical Malpractice Law Blog

These are the blogs I try to look at every day.  There are a bunch of others I look at when I have nothing else to do, and still others I look at when I am trying to find a particular piece of information.  But these blogs keep me informed about matters of interest to me in my daily practice.

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I really enjoy reading Blog 702.  The writing is great, the posts informative.  I wish they had a permalink function in their blogging program, but this post is too good not to re-print here in toto.

2/7/07 UPDATE:  I got a comment from the folks at Blog 702 and they informed me that they do have a permalink function.  My bad.  Here it is the link.

"A post by Ted Frank at Point of Law directs us to another post, by Jim Beck and Mark Herrmann at Drug and Device Law, which adverts, in turn, to an article in the December 2006 issue of Neurology entitled "The impact of litigation on neurologic research." The article is authored by two faculty at the Washington University School of Medicine (Drs. Brad A. Racette and Joel S. Perlmutter) and two attorneys (Ann Bradley, internal university counsel, and Carrie A. Wrisberg, a partner in the St. Louis law firm Moser & Marsalek).

We sprang for the $20 that the American Academy of Neurology wanted, before it would let us download the article. Someone not wishing to spend the $20 might get the general flavor from Washington University’s press release. Like the Beck & Herrmann post, the Neurology piece posits that an undue burden is imposed on medical research (or can be) by litigants seeking discovery of the researchers' data. The authors float the idea of a federally legislated "research scholar privilege" to ameliorate this burden. Indeed, they call such legislation "essential to advancing medical science."

Go to the January 11, 2007 post for the balance of article.

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I never met Molly Ivins, but wish I had.  She was a gifted writer with a wonderful sense of humor.

Her death is a real loss for all of us who love to read about politics.

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The Supreme Court of Arizona has ruled that  persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.

The defendant shared his prescribed drug (oxycodone) with others at a party.  One of the women he shared the drugs with gave them to the plaintiff's decedent, who died that night from the combined toxicity of alcohol and oxcyodone.  The plaintiff (decedent's mother) sued, and defendant denied that he owed a duty to the decedent.

The Court held that because Arizona had  statutes prohibiting the sharing of prescription drugs a duty existed.  The Court said that "[b]ecause [the decedent] is within the class of persons to be protected by the statute and the harm that occurred here is the risk that the statute sought to protect against, these statutes create a tort duty."

The case is Gipson v. Kasey, CV-06-0100-PR (S.C. Az. Jan. 2007).  Read the opinion here.

NOTE: for those of you who are have no life other than the law, this opinon has a fascinating section that rejects the consideration of "foreseeability " as a factor in determining whether a duty exists.  The Court said "we now expressly hold that foreseeability is not a factor to be considered by courts when making determinations of duty, and we reject any contrary suggestion in prior opinions."

Rather, the Court said, "[f]oreseeability *** is more properly applied to the factual determinations of breach and causation than to the legal determination of duty. *** We believe that such an approach desirably recognizes the jury’s role as factfinder and requires courts to articulate clearly the reasons, other than foreseeability, that might support duty or no-duty determinations."

Fascinating, isn't it?

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I have not had any posts in the last couple days because I have been trying a jury case out of town since Tuesday.  We wrapped it up late yesterday. The case will undoubtedly be the subject of post-trial motions and therefore it is probably not appropriate of me to write about it at this time.

That being said, it was nice to be in trial again.  The work leading up to it is draining, but the trial itself is just plain fun. 

About five years ago Rebecca Blair and I tried a medical malpractice case that settled on the ninth day of trial.  I had deposed the defendant surgeon twice, spent all those trial days with him, and during the breaks we would have pleasant conversation.  (I am not one of those who lawyers who has to hate his adversary to try the case. The defendant was always polite to me and I hope he felt that I was polite to him.)  On day seven he said to me "I don't know how you guys do this.  The stress is unbearable."  I then mentioned the stress of the OR and said I assumed it would be comparable, especially when things went bad.  He disagreed and said the courtroom was worse.

Well, undoubted the stress of the courtroom would be worse if you were a party to the case.  And I can't compare the relative stress of being a surgeon in the OR and or a lawyer trying a case.  I can say, however, that I have lost five pounds in the last three days.

Does anyone have a twelve day trial coming up in the near future where they could use a reasonably competent second chair?  I have some more pounds I would like to drop.

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Well, as you probably have heard, a woman who participated in a "Hold your wee for a Wii" contest died of water intoxication.   According to the Sacramento Bee, "the contestants were given two minutes to drink an 8 ounce bottles of water every ten minutes. The winner was the last one to use the restroom."

An attorney has announced that suit will be filed against the station.

The allegations - and apparently undisputed facts - are that the disc jockeys laughed about the risk to participants and knew the risk of the stunt could be fatal.  Indeed, according to the Bee article, "a nurse called into the program to warn that drinking too much water was dangerous."

The 28 year old woman had three children.

What are the merits of the claim?   One famous, early case on the issue of liability of radio stations for conducting contests is Weirum v RKO General, Inc., 15 Cal. 3d 40, 123 Cal.Rptr. 468, 539 P.2d 36 (1975) which held a radio station liable  for the death of a motorist caused when contestants racing toward the scene negligently forced an automobile off the roadway, killing its sole occupant.  There are other, later cases more on point that discuss more analogous facts; Weirum addressed the death of a third-party, not a participant.  Third-party cases raise different legal issues because they give rise to foreseeability and First Amendment concerns.

The death of a participant gives rise to different challenges.  What did the participant know and when did she know it?  Assuming that she did not know the risks of water intoxication (I do not know one way or the other), the case appears strong, especially if the employees of the station did (and the Bee article indicates that they knew no later than sometime during the contest and before the woman died.

The woman apparently signed a release of liability, which are generally  enforceable under Tennessee law ( I do not know whether it would be under California law) but the release would not be valid in the face of willful misconduct or gross negligence.  (For Tennessee law on the issue read Empress Health and Beauty Spa v. Turner, 503 S.W.2d 188 (Tenn. 1973) and Childress by and through Childress v. Madison County, 777 S.W.2d 1 (Tenn. Ct. App. 1989).   If the articles I have read are accurate, there is at least a jury issue on the question of gross negligence - and maybe more.

I am hesitant to opinion on  the validity of a case based on news reports.  I would like to see the release - it has not been posted on www.smokinggun.com.  If you find it, please send me a link.

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Most of us know judges who from time to time have disagreements with their colleagues and know other judges who simply don't like a judge they have to work with every day.  There is nothing unusual about this - judges are people and it is unrealistic for anyone to expect that the day a person puts on a robe he or she is able to silently accept the human failings of others (or not have failings of their own).

But in Tennessee those disagreements rarely find their way to the public eye.  Indeed, I have no memory of ever reading a Tennessee court opinion in which one judge criticized the intellect or integrity of another judge.  We simply don't do that "down here."

Things are a little different in Michigan - an "up there" state.  Those of you who love the law (or lack a real life) already know that the Supreme Court in Michigan is polarized.  But I admit that I had no idea that it had gotten downright ugly, as reflected in this memo dissenting from the election of the chief justice.

Just one example: "I dissent because the majority of four of this Court has misused and abused the judicial power by suppressing, or attempting to suppress, dissent, and has engaged in repeated, unprofessional and unfair conduct in the performance of the judicial business of this Court."

The immediate response by folks "down here" would be to condemn the writer.  And, to be sure, I cannot imagine such a document being written by any judge on any of our appellate courts.

Then again, she makes some very serious charges about the way the administration of her court.  I urge you to read the document and ask yourself this question:  If what this judge says is true, and her concerns have not been adequately addressed internally, does she have a duty to speak out?  

Thanks to Appellate Law and Practice for bringing this to my attention.

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Can you imagine sitting in your battery-powered wheelchair and having it catch on fire?

That's what the plaintiff alleged happened to her late father in this California case.  It settled on the courthouse steps; the settlement is, of course, confidential.

The article reports that "in 2006, said court records, the company released a new product manual warning of the potential for hydrogen fire during recharging of the wheelchair's battery."

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We have "Metoo" motions in Nashville.  They usually occur when one defendant takes the time to draft and file a motion and memorandum and the  co-defendants  file papers that simply say "Metoo."

But a "Metoo" motion has a special meaning Up North.  Or, should I say, it will from now on.

A judge in Hartford has permitted Ms Reed, a plaintiff suffering from PTSD, to have her dog "Metoo" with her in court during her trial.  The Hartford Courant reports that the plaintiff maintains that  "Metoo is a service dog that helps her through panic attacks and frees her from the use of medication. The dog is trained to stay close to Reed and lick her face when she becomes disoriented. Without the dog, Reed said, she might not have been able to get through the trial."  [Emphasis added.]

You have to wonder whether defense counsel bothered to oppose the motion.

Read the full article here.

Okay, I could have lots of fun with this.  But it would be too easy.  Way too easy. 

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I hope everyone had a Merry Christmas.  We did in our home - although the family is convinced that I will do myself severe bodily harm with my new chain saw.  Perhaps I will - but think of the fun I will have at Halloween!

I am going to take a couple days off from posting.  I have a bunch of things to do this week and I am going to concentrate on those matters and get the new year off to a good start.

Check back with me on January 2, 2007.

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The Illinois Supreme Court held that it was not appropriate to certify a class of personal injury plaintiffs who received injuries as a result of chemical exposure after a train derailment.

The holding:  "Although proof of the cause of the derailment will be relatively straightforward, this alone will not establish the Railroad’s liability. Proof of proximate causation and damages will be highly individualized and will consume the bulk of the time at trial. Because the statutory requirement of predominance cannot be met in this case, we hold that the circuit court abused its discretion in certifying the class."

The case is Smith v. Illinois Central Railroad Company,  Docket No. 102060 (Ill. S. Ct. 11/30/06);  read it here.

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Well, yesterday I had to be a lawyer again, taking a deposition in a matter pending in Bankruptcy Court where we have been hired to represent the Trustee.  I find myself doing more and more commercial litigation and, quite frankly, it is quite enjoyable.  I majored in business and economics in undergraduate school and like to have the opportunity to put some of what I learned into use.  Of course, I will always love tort law, but the fact of the matter there is a good deal of that can be put to use in commercial litigation.

Today I am in court in Clarksville on some motions in limine for a trial I have next month.  Therefore, I lack the time to write a substantive post. 

I'll have something for you on Friday.

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Law.com has published an interesting article titled "Who Killed the Mass Tort Bonanza?"

The opening paragraph:  "The power of the plaintiffs bar is on the wane in this country, and will be for a long time to come."  Followed shortly thereafter by this:  "Neither [business interests or trial lawyers], however, would deny that the civil justice system looks drastically different than it did even two years ago. The true triumph (or tragedy, depending on your perspective) of the tort reform movement has been its ability to leverage the success of its public relations campaign into concrete and hard-to-reverse changes. State legislatures have passed laws that undercut the trial lawyers' successes in Washington, D.C. -- especially in the asbestos litigation, which has declined precipitously since the early 2000s. "

This article has done a nice job of explaining the current lay of the land in mass tort litigation.

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In Pruitt v. Hancock Medical Center,  NO. 2005-CA-00132-SCT (Miss. S. Ct.  11/16/06),  Plaintiff had a personal injury claim that was not disclosed in a bankruptcy filing.  The injury occurred before the bankruptcy petition was filed.  She received a discharge of her debts in her Chapter 7 proceeding, and then took action in state court to seek damages from the alleged tortfeasor for the injury.  Her claim was dismissed for lack of standing, and the Supreme Court of Mississippi affirmed.

The Court said as follows:  "This Court concludes that the Pruitts' cause of action accrued prior to the filing of the Pruitts' voluntary petition for Chapter 7 bankruptcy on August 21, 2002. As this Court finds that the cause of action existed at the time of filing the bankruptcy petition, the cause of action became property of the bankruptcy estate under 11 U.S.C. § 541(a)(1). 'If a cause of action belongs to the [bankruptcy] estate, then the trustee has exclusive standing to assert the claim.'" [Citation omitted.]

Read it here.

Oh yeah, the Plaintiff tried to re-open the bankruptcy filing to assert the claim, but by the time that was accomplished the statute of limitations ran on the personal injury claim.

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The Federal Rules of Civil Procedure are being changed to make them more readable.  This post from Trial Ad Notes discusses the change and gives an example on how Rule 6 would be re-written.

All 250 pages of the proposed revisions may be found here.  The rules are still in the rule-making process and will not go into effect before December 1, 2007.

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Several times in the last few months I have posted blue-chippers in a new format.  (For those of you who do not know what a blue-chipper is read this post).  Examples can be found here, here, and here.

My question to you is this:  do you like this format?  Is it helpful to you? What changes do you recommend? Obviously, it takes a good deal of work to put one of these posts together and I could save some time using an abbreviated format as I have done in the past if readers do not find the additional information helpful. 

Please let me know your thoughts, via either a Comment or a private email to jday@branhamday.com.

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The South Carolina Supreme Court has ruled that a spectator at a hockey game may not sue when he is hit in the face by a puck, and cited Tennessee law in reaching its conclusion.

The South Carolina Court said: "Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998) (emphasis in original).[1] The Davenport Court further explained the doctrine as follows:

Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff. . . .[T]he Tennessee Supreme Court summarized the doctrine in the following way:

In its primary sense, implied assumption of risk focuses not on the plaintiff’s conduct in assuming the risk, but on the defendant’s general duty of care. . . .Clearly primary implied assumption of risk is but another way of stating the conclusion that a plaintiff has failed to establish a prima facie case [of negligence] by failing to establish that a duty exists.

[Perez v. McConkey, 872 S.W.2d 897, 902 (Tenn. 1994)].

The Court went on to say that "[u]nder the doctrine of implied primary assumption of risk, Respondents’ duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey."  The case was dismissed.

The case is Hurst v. East Coast Hockey League, Inc., Opinion No. 26222 (S.C. S. Ct. Nov. 13, 2006).  You can read the opinion here.

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Ok, this is your last Justice Programs seminar post of the year.

This week (Thursday and Friday) we are in Nashville and are almost sold out.  We have a few spots left at chairs with tables and then we will have to put attendees in chairs without tables.  We booked a room that would allow us to increase the number of attendees by over 100% over the number we had last year but have still run out of room. 

Next week (December 7 and 8) we conclude  the seminars with our program in Memphis.  We are expecting another record crowd there.

Thank you for your support of these seminars this year.  We doubled the number of attendees (and then some) in Chattanooga and Knoxville and, more importantly,  have gotten great feedback on the programs.  Our goal was to offer relevant CLE for civil trial practioners and it certainly seems that we are giving Tennessee lawyers what they want to learn.

There is one additional benefit of these programs coming to a conclusion - I can catch up on some sleep and gain some personal time.  I still have a very active law practice.  The eight days I have spent out of the office attending these programs has been made up by some very early morning hours and some late nights.  I justify (rationalize?) this extra effort by telling myself that (a) I am having fun; (b) I am actually making some  money on these programs and (c) I can actively use what I am talking about in these seminars in my law practice.  I enjoy writing and speaking but view both as a means to an end, the "end" being serving my clients as an effective trial lawyer.

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I enjoyed Cyrus Dugger's op-ed piece from The West Virginia Record and thought you would, too.

An excerpt from "Sue as I say, not as I sue:"

"It is striking, however, how quickly those who advocate for tort "reform" are willing to change their tune. While they publicly "speak out" about how too many lawsuits are ruining a state's economy, or how lawsuits are somehow innately "bad," when they or somebody they love is injured, all of this public rhetoric goes out the window and they go straight to court. In short, these people are tort "reform" hypocrites. "

Read more of Cyrus' work at TortDeform.

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I will not be blogging for a few days.  I am taking today off for Thanksgiving and tomorrow morning I am off to Mexico where I will be speaking at a seminar on tort law to some Tennessee lawyers who also have an interest in diving.  I will be speaking  on Saturday and Sunday (three hours per day) and spending the rest of the time relaxing in Cozumel.

I hope you and your family have a wonderful holiday.

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I am pleased to announce that I have been elected to membership in the American Law Institute.  The ALI is the organization that creates the Restatements of the various areas of the law and participated in the creation of  the Uniform Commerical Code, the Model Penal Code, and numerous other codifications and studies.

In particular, I hope to be able to make a contribution to a current ALI project,  "Restatement of the Law Third: Liability for Physical Harm,"  and other tort projects over the years.

Thank you to Knoxville lawyer and mediator-extraordinare Howard Vogel for nominating me for this position, and to United States Court of Appeals Judge Cissy Daughtrey, Tennessee Chief Justice William Barker,  Tampa attorney Bill Wagner, and Memphis attorney Lucian Pera for writing letters to ALI on my behalf.

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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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I have reported on a number of spoliation cases in this blog recently, but this is the first on against an attorney.  Plaintiff argued that Plaintiff's counsel had failed to inspect or secure evidence in the possession of the plaintiff's decedent's employer in the underlying products liability action.  Plaintiff also filed a spoliation claim against the employer.  Both claims were dismissed, and Plaintiff appealed.

The Arkansas Supreme Court noted that a first-party spoliation claim is not recognized in Arkansas.  After reviewing law from across the nation on point, the Court said that "we believe it would be inconsistent for us to hold that a third party,  who is not a party to the underlying action, could be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. Furthermore, we cannot recognize a new tort as a means to deter third-party spoliation of evidence when the result of such a tort would create potentially endless litigation over speculative loss. A victim of third-party spoliation should seek a remedy in a means other than an individual tort claim."  [Citation omitted.]

Read Downen v. Redd, NO. CV-2004-107 I (Ark. S. Ct. 11/02/06) here.  Use the "Search" function to find other spoliation cases on this blog.

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Almost everyone knows that Millberg, Weiss, at one time the country's leading class action law firm, has been indicted.  The allegation is that the firm paid plaintiffs be serve as class representatives.

I have followed the story for several years but this article in Fortune  (and posted on money.cnn.com) caught my eye while I was searching for something to read on an airplane.  You will not believe how it came to be that largest class action firm in the country got into so much trouble.

I do not know if the firm violated the law; I give it the same presumption of innocence I try to give everyone charged with a crime.  But if the facts set out in this article are true, the firm has got a problem.  A real problem.

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Chris Nearn correctly pointed out that my post Saturday had incorrect dates for programs in Memphis and Nashville.   I don't know how I messed that up.   Thanks Chris.  Here is a corrected post.

Thursday and Friday I was in Chattanooga for the first Justice Programs seminar of the year.  We doubled our attendance over that of 2005 and put together a solid seminar program (if I do say so myself).  The Reed House is a good venue.

Unfortunately, something has happened with my wireless card in my notebook computer and I was unable to post  yesterday. 

This week we offer the program in Knoxville at the Marriott and, once again, and fortunate to have our pre-registrations almost double that of last year.  We are in Nashville on November 30 and December  1  at the Nashville School of Law  and Memphis on December 7 and 8 at the Cook Convention Center.

If your practice is primarily civil litigation you may want to consider this program.  This one seminar will give you all of your CLE requirements for the year but, more importantly, will give you information  that you can you use to serve your clients.

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Well, I was wrong about the identity of the person who sent me the t-shirt.  It turns out it was a lawyer from Tennessee, a regular reader who is an ND fan (but not an ND grad).

Thanks again.

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Ok, I went to Knoxville and saw the UT - LSU game.   My beautiful, talented, gentle and intelligent wife gets downright mean when UT loses.   Fortunately, I have a well-known ability to keep my mouth shut as necessary and therefore I did not bear the brunt of her anger.  Or much of it.

Back to keeping my mouth shut.  Last week's post about Notre Dame's annual ass-whippin' of Navy gave rise to lots of private email traffic from ND fans.   I had fun going back and forth with them, but must admit that one of them one-upped me by sending me a Notre Dame / UNC shirt commerating the November 4, 2006 contest between the two teams.  (Yes, ND beat UNC.  Surprise.)   The sender did not reveal himself, although I have a strong suspicion that the shirt was sent by a plaintiff's lawyer  (ND grad) in North Carolina.  (I identify him as such because I know that his father also reads this blog and, while he is appropriately proud of his son, he works the other side of the fence.)

Lesson for  me - pick on ND and you spend a lot of time answering emails from ND grads who provide links in support of their position.  

Thanks for the t-shirt.

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No, I'm not dead, just a little tired.  I have been in Cincinnati the last two days, preparing a witness one day and attending his deposition on the second day.  I did not get home until 8:15 last night and am feeling the effects of spending two long days on the road.

Today I play catch-up until I hit the road at 3:00 to go the Knoxville for the UT - LSU game tomorrow afternoon. 

I will be back next week with information you can use to better serve your clients.

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Here is another blog on tort reform.

The introduction:  "Tort reform” has become a staple of Republican politics. Limits on lawsuits are offered as a solution to everything from the health care crisis and economic stagnation to America's moral decline. Americans overwhelmingly believe that the nation is awash in frivolous lawsuits.

And that's just where The Tortellini comes in. Because most of what you’ve heard about “lawsuit abuse” is wrong. The majority sentiment on legal reform comes courtesy of a long disinformation campaign by the U.S. Chamber of Commerce and other big business sponsors like the tobacco, insurance and automobile industries. These folks have managed to convince voters from to Hawaii to Maine that plaintiffs in civil actions are whiners, hustlers, and layabouts, and that their attempts to win the “lawsuit lottery” have created a “litigation explosion.”

The truth, as The Tortellini will attest, is more complex. The number of personal injury filings are falling, not rising, according to sober government data, median awards are falling, and plaintiffs are taking it on the chin, in everything from medical malpractice to products liabilty lawsuits."

The author is Stephanie Mencimer, a writer with Washington Monthly.

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Next week is the first of the 2006 Justice Programs seminars - it will be held in Chattanooga. 

The program offers 15 hours of CLE, including 3 ethics and professionalism hours.  The speakers are former Justice Penny White, former Judge Joe Riley, and yours truly. 

The seminar is designed to bring civil trial practioners up-to-date on recent developments in the law.

The dates and locations of the programs:

Chattanooga - November 8 and 9

Knoxville - November 15 and 16

Nashville - November 30 - December 1

Memphis - December 7 - 8

The program starts at 8:30 on each day.  The ethics and professionalism hours are Friday afternoon and may be attended seperately.

Go to our website to register.

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The Davidson County jury list includes an unusual entry this week.

Each prospective juror is supposed to complete a questionnaire and then a jury list is completed with includes  the stated employment of the juror and the juror's spouse.  One juror listed his employment as "Professor."  He listed his wife's employment as "Disciple of Satan."

Turns out they are going through a divorce.

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Notre Dame beat Navy, just like they have done every year since 1963. 

I guess if you beat a team 43 years in a row you have a reason to be proud . . . of the person who negotiates your football schedule.

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