Day on Torts

"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.

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.

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. 

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.

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.

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).

A federal judge has written a "Top Ten" list taking issue with the United States Supreme Court opinions on the sentencing of criminal defendants.  Read it here.

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.

I have an early morning meeting and won't be able to post until closer to Noon.  Check back later for another in the Great Lawyer series.

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?

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.

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.

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.

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.

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.

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.

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.

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.

We had an excellent crowd for our annual review and ethics seminar in Chattanooga last week.

This week we will be in Knoxville on Thursday and Friday.    On November 27 and 28 we will be Nashville and on December 6 and 7 we will be in Memphis. 

Attendance at both days of the seminar earns fifteen continuing legal education credits.

Go to our website for more information.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. 

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.

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. 

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.

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.

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.

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.

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. . . ."

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?

Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.  

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. 

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.

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.

Here is a follow-up story on my earlier post about a lawyer who indicated that a judge was a few fries short of a Happy Meal.

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.

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.

This article from the Washington Post tells a fascinating tale about a lawyer for Best Buy who altered documents and then produced them to the plaintiffs in a class action case.

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.

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

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. 

The Tennessee Department of State has administrative rules and regulations on its website.

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.

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.

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!

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.

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.

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?

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.

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.

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!

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."

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.  ... 

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.       

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.

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.'"

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.

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.

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.

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.

I have a hearing this morning and need to work on a paper I will be presenting in Las Vegas at the end of the month.  Sorry, faithful readers, but I need to get to work.

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