Strip Club Murderer Loses Appeal

The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

Evidentiary Issues

Father’s appeal was pretty much devastated at the outset because he did not file a transcript of the evidence (under Tenn. R. App. P. 24(b)) or a statement of the evidence (under Tenn. R. App. P. 24(c)) in the appellate record, resulting in a conclusive presumption on appeal that there was sufficient evidence before the trial court to support its judgment. Tennessee law holds that, to the extent issues on appeal depend on factual determinations, the lack of a transcript or statement of the evidence is essentially fatal to the party having the burden on appeal. Father challenged the sufficiency of evidence, arguing that there was conflicting testimony about who participated in the fight with Jernigan and that Jernigan had been under the influence of alcohol and marijuana at the time of his death. Father also challenged the sufficiency of the complaint, contending that it failed to state a claim upon which relief could be granted. However, because father failed to file a transcript or statement of the evidence, there was no evidence before the court to review on appeal. The appellate court therefore found father’s evidentiary issues without merit.

Legal Issues

Father sought review of the trial court’s denial of his request to appoint counsel to represent him. The appellate court rejected father’s argument because, unlike indigent criminal litigants, indigent civil litigants have neither the constitutional nor the statutory right to court-appointed counsel.

In father’s second legal issue, he argued that the trial court failed to rule on “numerous pending motions” filed in the trial court. However, the appellate court rejected this argument because father failed to identify which motions he was referring to, and he otherwise failed to establish that any substantive motions were not properly addressed by the trial court.

Father’s third legal issue argued that the trial court should have severed father’s civil trial from son’s civil trial. Rule 42.02 of the Tennessee Rules of Procedures states that a trial judge may exercise its discretion to order separate trials for “convenience or to avoid prejudice,” and the Tennessee Supreme Court has held that the interest of justice will warrant a bifurcation of the issues in only the most exceptional cases and upon a strong showing of necessity. Father’s appellate brief failed to identify any reason why he was prejudiced by the trial court’s denial of his motion to sever. Further, the trial court had found that father and son were both necessary witnesses in each case, and, depending on the proof at trial, fault would likely need to be allocated against each defendant. Based on these considerations, the appellate court found that the trial court did not abuse its discretion in denying father’s motion to sever. 

Father’s fourth legal issue on appeal challenged the competency of a witness who testified at trial. Father alleged that the witness had past criminal charges against him, mental health issues, and was “unreliable.” But, again, because of father’s failure to file a transcript or statement of the evidence, the court of appeals was unable to fully address the witness’s competency. With no evidence to counter the presumption of correctness afforded to the trial court, the appellate court had no basis to conclude the evidence was insufficient to support the ruling that the witness was competent to testify, and thus father’s argument was rejected.

Issues First Raised on Appeal

Father argued the following three issues for the first time on appeal: whether Jernigan’s parents had standing to bring the wrongful death claim, whether Jernigan’s parents filed the wrongful death lawsuit within the statute of limitations, and whether the lawsuit satisfied the requirements of the Federal Tort Claim Act. The appellate court summarily rejected all three issues, relying on well-established Tennessee law that holds that if an issue is not properly raised in the trial court it cannot be raised for the first time on appeal. Because father did not properly bring these matters to the attention of the trial court, the appellate court that they were without merit.

Note to non-lawyers:  practicing law ain't rocket science, but there are rules that, if not followed, create all sorts of problems.  I don't fix my own toilets, and you probably should defend yourself in a wrongful death case.

Widow Loses Right to Wrongful Death Proceeds Because of Tennessee Postnuptial Agreement

Under Tennessee wrongful death law, the distribution of proceeds obtained after a settlement for wrongful death are governed by common law not statute. Basically, the law provides that the wrongful death proceeds are distributed under the law of intestate succession.

Thus, if a decedent left behind a surviving spouse and one child, each would receive one-half of the proceeds. If the wrongful death decedent left behind a surviving spouse and two children, each of them would receive one-third of the wrongful death proceeds. A surviving spouse would never receive less than a one-third share of the recovery, even if there were three or more surviving children.

A recent case from the Tennessee Court of Appeals faced a question never addressed before in Tennessee: what happens to wrongful death proceeds when the surviving spouse entered into a postnuptial agreement agreeing to waive all rights which she acquired as a result of her marriage to the defendant?

A few more facts. Fourteen years after Mr. and Mrs. Rickman were married, they entered into a postnuptial agreement waiving their rights to the property of the other, including all "rights they may have acquired by reason of their marriage." Mr. Rickman died first, and his wife entered an Order in the probate action acknowledging that she was not entitled to any portion of Mr. Rickman's estate.

Thereafter, one of Mr. Rickman's children (from a prior marriage), acting as Administrator of the Estate, filed a wrongful death lawsuit against a health care provider. The lawsuit was settled several months later, and Mrs. Rickman claimed a portion of the proceeds. Mr. Rickman's children claimed the postnuptial agreement barred her from recovering any portion of the proceeds, and the instant litigation ensued.

(Those unfamiliar with Tennessee wrongful death law need to know that even though the administrator of an estate has the right to file a wrongful death lawsuit the proceeds of any recovery in the action belong not to the estate but, as stated above, pass to the beneficiaries under the law of intestate succession. Thus, the fact that the widow disclaimed any interest in the estate of Mr. Rickman was not dispositive of the issue of whether she was entitled to any portion of the wrongful death proceeds.)

The Tennessee Court of Appeals affirmed the decision of the trial court denying Mrs. Rickman any recovery from the wrongful death settlement. The court ruled that *[w]idow’s only claim to entitlement of the proceeds from the wrongful death action is 'by reason of [her] marriage' to the decedent. Accordingly, the postnuptial agreement, which is undisputedly valid and enforceable, waives her right to share in the wrongful death proceeds." The court did not follow the precedent from several other states on the issue, noting differences in the wording of the postnuptial agreements in those cases and differences in the wrongful death law.

Although not discussed in the opinion, the same reasoning would apply to prenuptial agreements, which are much more common than postnuptial agreements. 

It is unknown whether Mrs. Rickman will ask the Tennessee Supreme Court to review this case. The opinion was issued on October 15, 2013, and she has sixty days to file a request for Supreme Court review.

The opinion should be of interest to all Tennessee wrongful death lawyers as well as to lawyers who draft prenuptial and postnuptial agreements. The broad language of these agreements would frequently result in the surviving spouse not receiving wrongful death proceeds arising from the death of the other. On the other hand, a Tennessee prenuptial agreement or postnuptial agreement could be drafted to allow for the survivor to share in wrongful death proceeds if desired.

The case is Rickman v. Rickman, No. M2013-00251-COA-R3-CV, (Tenn. Ct. App. Oct. 15, 2013). For more information about leading cases on Tennessee wrongful death law in Tennessee, click on the link.

Tennessee General Assembly Fixes One Small Problem With The Tort Reform Legislation

Well, it ain't much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis"  for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2),   This was a disaster waiting to happen.  Why?

Here is an example.  Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident.  She will never work again and she has a significant future medical expenses over her lifetime.  Her life expectancy is disputed - the defense says she has a fifteen year life expectancy and the plaintiff's expert says she has a normal (sixty year) life expectancy.  There is also a dispute over the inflation rate and the discount rate.

Under the original version of the law, the jury would have up to 240 separate lines  to complete on future damages - 80 entries on lost earning capacity, 80 lines for future medical bills, 80 lines for non-economic damages.  This is not only an unnecessary hassle for the jury, but it also creates lots of opportunities for error.

If she had been married at the time of the incident, another 80 lines would be required for future loss of consortium.

The new legislation - State of Tennessee Public Chapter 379 -  eliminates the words "on an annual basis."  Thus, the jury still must still break out past and future damages by class, and if life expectancy is disputed it must still determine the plaintiff's life expectancy, but it need not determine each class of damages on a year-by-year basis.

The change in the law became effective on the date it was signed by the Governor.  (May 14, 2013)

The Tennessee Judicial Conference gets the credit for getting the General Assembly to make this important change in the law.  A crazy law just got a little less crazy. 

Major Changes to Tennessee Wrongful Death Law - Death of a Spouse

Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.  

However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.

The Tennessee General Assembly has weighed in on the controversy.  First, Tenn. Code. Ann.  Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent  for a period of two (2) years.  Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head. 

Section 20-5-107 (e) also addresses the issue, and provides inter alia that if the spouse who files the wrongful action is later disqualified from so serving or from receiving proceeds the filing date of the action by the disqualified spouse is preserved for statute of limitations purposes.

Section 20-5-106 (c) requires children who bring a wrongful death case to put the surviving spouse on formal notice of the filing, presumably so that his or her rights can be determined in the proceeding.

The new provisions have not yet been interpreted by Tennessee appellate courts.  However, the changes to the law represent a responsible effort to clarify and simplify the process of the progression of wrongful death cases in these difficult circumstances and the distribution of wrongful death proceeds.

Distribution Of Net Wrongful Death Proceeds in Tennessee

As regular readers know,  the Tennessee Bar Association has published a regular column in the Tennessee Bar Journal called "Day on Torts" for many years.  I enjoy writing for these articles and am thankful for the many calls, letters and emails I have received over the years from my fellow lawyers thanking for me writing them. 

The September 2012 edition of the publication includes my latest column, titled "Distribution of Net Proceeds in Tennessee Wrongful Death Cases."   The article offers an analysis of Tennessee law on how statutory beneficiaries divide the net proceeds of wrongful death settlements and judgments.

I wrote this column after receipt of many calls from lawyers asking me questions on the subject.  I hope that this work helps other lawyers serve their clients in Tennessee wrongful death cases.

What Is A Life Worth?

The Tennessee General Assembly has now placed arbitrary caps on damages in personal injury and wrongful death cases.  And the House of Representatives just passed HR 5, which placed a caps on damages in medical malpractice cases.

But how does the federal government value life when weighing regulatory burden?  The New York Times provides us these figures:

  • EPA - $9.1 million
  • FDA - $7.9 million
  • DOT - $6.0 million

The government looks to research from W. Kip Viscusi, a professor at Vanderbilt, for its numbers.  His paper on the subject, The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World, is fascinating.  He currently pegs the value of human life at $8.7 million.

His model is explained here:

The idea he and others have since developed in a long string of studies is that differences in wages show the value that workers place on avoiding the risk of death. Say that companies must pay lumberjacks an additional $1,000 a year to perform work that generally kills one in 1,000 workers. It follows that most Americans would forgo $1,000 a year to avoid that risk — and that 1,000 Americans will collectively forgo $1 million to avoid the same risk entirely. That number is said to be the “statistical value of life.”

There is no "value of life" analysis of any type conduct by the tort reformers.  Rather, their only goal is an arbitrary and low cap that will permit wrongdoers and their insurance companies to calculate the risk of misconduct in advance.

Who Has The Right To Bring A Wrongful Death Claim Arising From a Truck Accident in Tennessee?

Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:

  • A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
  • A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
  • If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
  • If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
  • If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
  • There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.

It is rarely necessary to open an estate in Tennessee for the sole purpose of filing a wrongful death lawsuit.  Thus, we rarely recommend that an estate be opened for the sole purpose of filing a lawsuit.


Alabama Holds That Wrongful Death Law Protects Unviable Fetus - Tennessee Law Does Not

Two recent cases from the Alabama Supreme Court hold that a parent may bring a wrongful death lawsuit on behalf of a stillborn child that was incapable of life outside the womb.

In Hamilton v. Scott, No. 1100192 (Ala. Feb. 17, 2012, Amy Hamilton alleged that several defendants negligently caused the death of the child she was carrying in utero. After discovery, defendant moved to dismiss, arguing that Alabama law required that the fetus had to viable outside the womb before the mother could maintain a wrongful death lawsuit.   The case was dismissed.

The Alabama Supreme Court reversed, citing the recent decision in Mack v. Carmack, No. 1091040 (Ala. Sept. 9, 2011) that raised the same issue. This is the holding in Mack, re-affirmed in Hamilton:

In sum, it is an unfair and arbitrary endeavor to draw a line that allows recovery on behalf of a fetus injured before viability that dies after achieving viability but that prevents recovery on behalf of a fetus injured that, as a result of those injuries, does not survive to viability. Moreover,it is an endeavor that unfairly distracts from the well established fundamental concerns of this State's wrongful-death jurisprudence, i.e., whether there exists a duty of care and the punishment of the wrongdoer who breaches that duty. We cannot conclude that 'logic, fairness, and justice' compel the drawing of such a line; instead, 'logic, fairness, and justice' compel the application of the Wrongful Death Act to circumstances where prenatal injuries have caused death to a fetus before the fetus has achieved the ability to live outside the womb.

In accord then with the numerous considerations discussed throughout this opinion, and on the basis of the legislature's amendment of Alabama's homicide statute to include protection for 'an unborn child in utero at any stage of development, regardless of viability,' § 13A-6-1(a)(3), [Ala. Code 1975,] we overrule Lollar and Gentry, and we hold that the Wrongful Death Act permits an action for the death of a previable fetus. We therefore reverse the summary judgment in favor of Carmack and remand the action for further proceedings consistent with this opinion.

Tennessee law does not currently permit the recovery of damages for the unborn child in this type of case. However, such a result would be mandated by a statute, not case law. T.C. A. Sec. 20-5-106 (d) (“’person’ includes a fetus that was viable at the time of injury. A fetus shall be considered viable if it had achieved a stage of development wherein it could reasonably be expected to be capable of living outside the uterus.”)  

It is interesting that the same result is not true if a person kills a non-viable fetus while committing a criminal act. T.C.A. Sec. 39-13-107. So, in Tennessee, we are willing to subject a person to a charge of murder for causing the death of an unviable fetus but we are refuse to hold the same person responsible for paying monetary damages for that same act. 

Damages for Death or Serious Injury of a Homemaker

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

Total number?  $96, 261 per year if one includes cooking, house cleaning, child care, driving, laundry service, and lawn maintenance expenses.

I don't know that this article can be reasonably relied upon by an expert in a Tennessee personal injury or wrongful death case, but the article does provide a nice list of the many services performed by those who choose to stay home and support the family through work in the home.



Wrongful Death of Children in Foster Care

The first law review article on the topic of "Wrongful death of children in foster care" has recently been published in the University of La Verne Law Review, 31(1), 25-44.  The article is co-authored by Daniel Pollack, Professor, School of Social Work, Yeshiva University, and a frequent expert witness in child welfare and foster care cases, and Gary L. Popham, Jr., an attorney in Arizona.

The article surveys wrongful death cases filed in various states involving the death of children in foster care. Part I discusses wrongful death claims in general, and Part II discusses foster care. Part III discusses specific cases involving claims of wrongful death filed in various states which arose from the death of a child in foster care. Lastly, Part IV briefly reviews the key aspects of foster care wrongful death cases.

For a copy of "Wrongful death of children in foster care" please contact Professor Pollack at

Wrongful Death Claims in Tennessee

When a person dies as a result of someone else's negligence, Tennessee law permits only certain people to assert a claim to recover damages for the death. This article does not discuss who receives the damages awarded by settlement or judgment of the case, but only who has the right to file suit.


If the decedent was married, his or her spouse normally has the highest right to pursue the wrongful death claim. A court may deny the surviving spouse the right to bring a wrongful death claim only if the spouse is not legally competent (that is, has some sort of mental problem that would affect his or her ability to bring and pursue a lawsuit), has shown that he or she cannot be trusted to bring the claim (for example, the parties were in a bitter divorce fight at the time of the death), or some other factor (for example, the parties had not lived together for years at the time of the death but had never divorced).

Children of the Decedent

If the decedent had no spouse but did have children, the children have the right to pursue the wrongful death claim. If the children are minors and there is no surviving spouse, the claim may be brought by a court appointed guardian of the children.


If the decedent is a minor or unmarried with no children, the parents of the decedent have the right to bring a wrongful death case. If the parents are divorced and the child is a minor, the parent with primary custody has the right to bring the case.

Executor or Executrix

If the person who died left a will and named an executor or executrix, this person would also have the right to bring a wrongful death claim in the name of the estate of the decedent.

Administrator or Administratrix

If the person died without a will, any person could ask the court to be appointed as administrator or administratrix of the estate of the decedent and then file suit in the name of the estate. If more than one person applies to be administrator or administratrix, the court will select one applicant after weighing several factors, including the relationship between the applicant and the decedent, the abilities of the applicants, etc.

What if there are several people qualified to bring suit?

The court will select the person to take a lead role in the case, after weighing several factors, including the relationship between the applicant and the decedent, the abilities of the applicants, who filed suit first, etc. The court will also look at the applicable statute, T.C. A. Section 20-5-106 which establishes a who has superior rights to bring a claim. Once again, the person who the right to bring a lawsuit does not determine who has a right to damages. The person who ultimately gets the right to bring the suit may or may not be able receive any portion of the money awarded by any settlement or judgment. The persons entitled to the proceeds of a wrongful death suit is governed by a different set of laws. 

Patient Rights and Health Care Reform

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President  should not in this article titled "Why Shouldn't Obama Throw Injured Patients Under the Bus to Get Heath Reform?  Ask Steven Olsen."

Steven Olsen is a malpractice victim from California.  Here is a letter written by the jury foreman after he learned that the jury's damage award was cut because of California's cap on damages.

We viewed video of Steven, age 2, shortly before the accident. This beautiful child talked and shrieked with laughter as any other child at play. Later, Steven was brought to the court and we watched as he groped, stumbled and felt his way long the front of the jury box. There was no chatter or happy laughter. Steven is doomed to a life of darkness, loneliness and pain.

He is blind, brain damaged and physically retarded. He will never play sports, work, or enjoy normal relationships with his peers. His will be a lifetime of treatment, therapy, prosthesis fitting and supervision around the clock...

Our medical-care system has failed Steven Olsen, through inattention or pressure to avoid costly but necessary tests. Our legislative system has failed Steven, bowing to lobbyists of the powerful American Medical Association (AMA) and the insurance industry, by the Legislature enacting an ill-conceived and wrongful law. Our judicial system has failed Steven, by acceding to this tilting of the scales of justice by the Legislature for the benefit of two special-interest groups....

I think the people of California place a higher value on life than this.


Debt Collector Blamed in Wrongful Death Lawsuit

Dianne McLeod says a debt collector killed her husband Stanley.  

According to CNN, Ms. McLeod alleges that " her mortgage company, Green Tree Servicing, for the wrongful death of her husband. McLeod said she thinks he would be alive if not for the stress caused by Green Tree's debt collectors. She said they sometimes called up to 10 times a day and also called the McLeods' neighbors."    Stanley , a heart patient died of heart failure.

The CNN story does not reveal the cause of action being employed in the Florida litigation.  In Tennessee, the Supreme Court has ruled that debt collectors may be liable for damages caused if they engage in intentional infliction of emotional distress, as known as the tort of outrageous conduct.  The case applying this tort to debt collectors is Moorhead v. J.C. Penny, Co. 555. S.W. 2d 713 (Tenn. 1977).   Whether conduct is "outrageous" and whether the conduct caused an injury or death is very much dependent on the facts.

What are the elements of tort of intentional infliction of emotional distress? 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".   Third, "the conduct complained of must result in serious mental injury."  A causation requirement is implicit in the third element which necessitates that the misconduct "result in serious mental injury."  For a complete discussion of the law in this area in Tennessee, read Doe v. Roman Catholic Diocese of Nashville,  154 S.W.3d 22 (Tenn. 2005).

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005.   The cap is $350,000.   In a case tried in Fulton County several years ago, the jury's verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

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

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

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

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




Continue Reading...

Work Life Expectancy Tables

Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses.

As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

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

To learn more visit the Vocational Econometrics website.

Loss of Services of a Homemaker

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

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

Vermont Supreme Court Allows Wrongful Death Recovery for Death of a Sibling

The Supreme Court of Vermont has held that the sibling of a decedent may maintain a wrongful death suit seeking damages for loss of companionship where the sibling is the "next of kin."

The Vermont statute provides that in a wrongful death case the court  jury may "give such damages as are just, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin or husband and next of kin, as the case  may be." 14 V.S.A. § 1492(b).   The Court had previously held that  "pecuniary injuries are not limited to economic losses, but may include recovery for loss of child or spouse's companionship, as well as loss of care, nurture, and protection."

In Dubaniewicz v. Houman, No. 2004-306 (September 15, 2006) extended its previous interpretation of the statute and held that plaintiff, as next of kin of the decedent, "may obtain such damages to the extent that he can prove them by submitting evidence of the physical, emotional, and psychological relationship between himself and the decedent."

Read the opinion here.

Pre-Judgment Interest - The Issue That Will Not Die

Pre-judgment interest is not the Wicked Witch of the East - it will not die. (Do you remember the unseen WWE? Dorothy parked a house on top of her and ended up with her ruby red slippers - much to the chagrin of WWE's sister, the Wicked Witch of the West.)

Tennessee does not have a statute that unquestionably permits the award of pre-judgment interest in tort cases, either as a matter of right or of discretion. It is fair to say that after a flurry of activity in the 1990s the issue appeared to be dead - until the Tennessee Supreme Court's opinion in Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn. 2005). That opinion placed pre-judgment interest on a ventilator, with plaintiffs' lawyers praying for a full recovery and insurance companies searching desperately for the power cord.

Now, Judge Koch and his colleagues on the Middle Section of the Tennessee Court of Appeals have declared pre-judgment interest dead. How dead? Judge Koch could have cited the medical opinion of the Coroner of the Land of Oz (given to a reasonable degree of coroner certainty) to reflect his views of the viability of pre-judgment interest in Tennessee:

"As Coroner I must aver, I thoroughly examined her.
And she's not only merely dead, she's really most sincerely dead."

Pointing back to the published opinion in Hollis v. Doerflinger, 137 S.W.3d 625, 630 (Tenn. Ct. App. 2003), the Court said that the Tennessee Supreme Court could not have meant what they said in Hunter v. Ura and that pre-judgment interest was "morally, ethic'lly, spiritually, physically, positively, absolutely, undeniably and reliably dead."

(Admit it - you sang that last part.)

Well, it's not - at least until the expiration of sixty days after the opinion in this case was released. The Tennessee Supreme Court will get a chance to resolve this issue once and for all, and it should take the opportunity to either re-affirm Hollis or tell us exactly what the law is on this issue.

The case is Francois v. Willis, No. M2005-01263-COA-R3-CV (June 6, 2006). Read the opinion here.


Great Info on Medicaid / Medicare Subrogation

I wrote recently about the decision in Arkansas Dept. of Health and Human Services v. Alhborn, 126 S.Ct. 1752 (2006), the USSC decision which ruled that state Medicaid agencies' claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff's recovery for lost wages, pain and suffering, permanent disability or other future damages.

Now, ATLA's Center for Constitutional Litigation has issued a paper titled "Possible Extension of Ahlborn Ruling to Medicare and Guidance to Plaintiffs' Counsel Regarding the Decision." The CCL's view: "We believe that Ahlborn's logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act ("MCRA") and the Medicare Secondary Payer Act ("MSPA"), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose."

The memo is a six-page receipe for addressing this issue.

This is a great article an exactly the type of thing that trial lawyers organizations need to do to help their members. (The CCL is ATLA's law firm.)

If you are going to attack this issue, please be sure to pick the right case and develop the record appropriately. If you are an ATLA member call the CCL for help. If you are not, join ATLA and call for help.

Thanks to the Kentucky Injury Law Blog for bringing this item to my attention.


Response to Motion in Limine to Exclude Economist's Testimony

This is a brief in response to a defendant's motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child's loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child's likely career path. The economist was asked, then, to simply address the likely present value of the child's earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child's likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today's dollars.

The Defendants moved to exclude the economist's testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist's original report did not include a deduction for personal maintenance expenses, which the Defendants' termed as "mandatory" under the Tennessee Supreme Court's holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

We hope this brief will assist you in addressing similar issues in the future. We have faced this issue several times in the past and the defendant's motion has been denied everytime. We hope that the same thing will occur this time. Indeed, if the defendant is correct, how can one ever prove the economic component of the pecuniary value of the life of a young child? The model described above condemns the child to "average;" should a court deny the jury access to information about the average child?

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Interesting Article on Punitive Damages

Professor Anthony Sebok from the Brooklyn Law School has written an interesting paper on punitive damages.

Here is his abstract of the article:

In this article I argue that the current problem with punitive damages in the United States is not, as is popularly believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis - courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining significant non-deterrence theories of punitive damages (including the theory developed by the United States Supreme Court in a series of recent decisions) fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as "private retribution" - which sounds odd to the modern ear - fits surprisingly well with modern theories of the tort system which view tort law as a system of civil recourse for citizens who have suffered wrongs in private law.

Download the article here.

Thanks again to Professor Childs for telling me about this paper.

Now, off for two days of depositions ....


Death of a Homemaker

A great new study that could provide for support for determining the value of the life of a homemaker.

A news article says this about the study: "A full-time stay-at-home mother would earn $134,121 a year if paid for all her work, an amount similar to a top U.S. ad executive, a marketing director or a judge, according to a study released on Wednesday. A mother who works outside the home would earn an extra $85,876 annually on top of her actual wages for the work she does at home, according to the study by Waltham, Massachusetts-based compensation experts"

Here is a link to report itself.


Collateral Source Rule Applies to Lawyers

A lawyer was hurt in a wreck and received injuries that limited his work hours. He was a partner is a law firm and continued to receive his regular compensation despite his failure to work and bill the required number of hours. The judge did not permit the defendant to tell the jury that the lawyer received his normal compensation. The jury awarded money for lost of income and defendant appealed.

The California Court of Appeal affirmed, stating "[h]owever criticized, maligned or debatable the application of the collateral source rule may be in this case, it is not within our province to depart from established California law and we decline to do so." The case includes a nice discussion of the public policy supporting the rule.

The case is Smock v. State of California, (A107532, A108413 Cal. Ct. App. 1st Dis., Div. 3 4/18/06). You can read it here.


Full Recovery of Medical Expenses Permitted

The Arizona Court of Appeals has decided that a plaintiff can recover the full value of her medical bills in a tort case and that the amount of the bills should not be reduced by contractual discounts. The case is Lopez v. Safeway Stores, Inc. (2 CA-CV 2005-0057, 2/28/06).

The opinion includes a survey of law from other states on this important issue. Read it here.


Chiropractor Testimony Just Decreased in Value

Chiropractors get a bad rap and almost certainly an unfair rap. But this type of news stories do not do the profession any good.

Time travel?


Research on Defense of Punitive Damages Cases

Punitive damages in Tennessee are rarer than hen's teeth. But that doesn't mean that they shouldn't be sought in appropriate cases - of course they should.

However, it is not enough to simply say: "what the defendant did was bad, real bad" and hope that you can carry the day. Punitive damage cases are aggressively defended and you need to have a good idea of the way defense counsel is going to approach the case.

Here is an article written by Dale E. Hausman of Washington, D.C. His firm represents insurers in insurance coverage matters. The article is titled "An Insurer's Defense Against Punitive Damages Claims," and although it is a little dated on the law it gives you an idea of what you will be facing at trial - and thereafter.


SCOTUS Denies Cert in Punitive Damages Case

The Supreme Court denied cert in a cigarette case yesterday, letting a $50,000,000 punitive damages award stand against Phillip Morris. The compensatory damages in the case were $5,500,000.

This will be an encouragement to the plaintiff in the Oregon tobacco case; recall that the Oregon Supreme Court affirmed a $79.5 million punitive damage verdict for that plaintiff recently.

Read more here.

Tobacco Decision Out of Oregon

You may hate tobacco lawsuits and lawyers who bring them. But you cannot help but agree that the tobacco industry is absolutely despicable. How the executives of the industry who lied to the country and the government for years can sleep is beyond me.

There are lots of people who agree, one group of them being the Supreme Court of the State of Oregon. This opinion affirms a significant punitive damage verdict against Phillip Morris.

Some excerpts:

"Again, we construe all facts in favor of plaintiff, the party in whose favor the jury ruled. Doing so, there can be no dispute that Philip Morris's conduct was extraordinarily reprehensible. Philip Morris knew that smoking caused serious and sometimes fatal disease, but it nevertheless spread false or misleading information to suggest to the public that doubts remained about that issue. It deliberately did so to keep smokers smoking, knowing that it was putting the smokers' health and lives at risk, and it continued to do so for nearly half a century.

Philip Morris's fraudulent scheme would have kept many Oregonians smoking past the point when they would otherwise have quit. Some of those smokers would eventually become ill; some would die. Philip Morris's deceit thus would, naturally and inevitably, lead to significant injury or death.

Although it weighs less in our analysis, we also note that Philip Morris harmed a much broader class of Oregonians. Every smoker tricked by its scheme, even those who never got ill, kept buying cigarettes -- taking money out of their pockets and putting it into the hands of Philip Morris and other tobacco companies. And every one of those smokers risked serious illness or death for as long as they remained deceived."

There is more: "In essence, Philip Morris is claiming that one cannot reasonably infer that anyone was actually fooled by its 40-year advertising campaign directed to thousands of Oregonians. Yet even the simplest assessment of human nature, viewed in light of the designedly addictive properties of cigarettes, tells any reasonable person that those lies would have been very persuasive. We think that such an appreciation of human nature fairly may be attributed to jurors, including the ones who heard this case. Moreover, Philip Morris's own conduct belies its protestations. As a for-profit corporation, it would not spend over 40 years of time, effort, and money to deceive people, unless it thought it was succeeding."

A nice way to end: "In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect -- and for two or more decades absolutely knew -- that the scheme was damaging the health of a very large group of Oregonians -- the smoking public -- and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards. It follows that the Court of Appeals correctly held that the trial court should have entered judgment against Philip Morris for the full amount of the jury's punitive damage award."

Post-judgment interest on the verdict exceeds $47,000,000.

Obviously, the USSC will have the opportunity to hear this case. However, for the time being, if you are trying to uphold a punitive damage verdict under State Farm v. Campbell you need to read this opinion.

The Law of Argument

Here is a decision that reminds us about the law of arguing damages. The decision - from Florida but true in Tennessee - holds that it is reversible error to refer to assets of the defendant in trying to communicate to the jury how to determine damages for pain and suffering.

It is nice to get a big verdict. But is better to get one you can keep. And that means you should know and follow the law of argument.


Amendments to TRCP - What Was Missing

I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).

What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.

I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.

More importantly, however, it is very difficult to determine the value of many cases early in litigation. Experienced lawyers know that the value of cases increases and decreases frequently during the discovery phase. Requiring a lawyer to state an ad damnum early will almost certainly result in an inflated ad damnum, which will then be used against the plaintiff later in the case. (If the original ad damnum is too low that will also have to be explained.)

Also, lawyers seem to forget that if they get sued for malpractice arising the ad damnum used in the original complaint will be Exhibit A at the trial of the negligence action. Obviously, that does not mean that you should understate damages out of fear of a professional negligence case. Instead, I believe that if you state an ad damnum it should be one that reflects the upper limits of the range of reasonableness for your case.

Do you need an ad damnum at all? That is the subject of a future post.

No Punitive Damages Against Deceased

The Indiana Supreme Court has ruled that personal injury victims cannot receive punitive damages against a person who is dead.

The Court's summary paragraph puts it this way: "The plaintiffs in this case were injured in an accident as passengers in a car driven by their father while he was intoxicated. After their father died of unrelated causes, the children brought this suit against his estate. We hold that Indiana law does not permit recovery of punitive damages from a decedent's estate."

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Gay Partner Cannot File Wrongful Death Suit

It had to happen sooner or later.

Neil allegedly died from medical negligence in New York. His partner, John, filed a wrongful death suit, alleging and proving that he and Neil had participated in a civil union in Vermont several years earlier and insisting that he could maintain a medical negligence suit.

The Associated Press reports that a divided appellate court in New York rejected the claim, saying that a ruling allowing John to maintain the action would be "taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature."

In Tennessee, John could clearly maintain the action if he were named executor or administrator of Neil's estate. The real issue would be whether John would be entitled to any portion of the recovery, i.e. would Tennessee law declare that John and Neil were "married" so that John could recover wrongful death proceeds under the law of intestate succession.

There is no case on point.

Loss of Future Earning Capacity

Can a injured plaintiff who is back to work ask for damages for loss of future earning capacity?

Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years.


Loss of Future Earning Capacity

Can a injured plaintiff who is back to work in the same job ask for damages for loss of future earning capacity?

Yes, rules the Eighth Circuit Court of Appeals, given the fact that there was evidence of ongoing physical problems and testimony by the plaintiff that he would probably not be working for as many years given his aliments.


Medical Monitoring

What do you do when you represent people who have been exposed to a dangerous substance but to date have not experienced an injury? Some lawyers have brought what is known as a medical monitoring claim, asking that the defendant be required to pay money to monitor the health of the plaintiff to identify and then treat health problems related to the exposure.

Plaintiffs in that situation are in a tough spot. If they wait until they suffer an "injury" there will be an argument that a statute of limitations or a statute of repose has run. If they file suit too early the defendant argues that the plaintiffs have not been injured and therefore do not have standing to bring a claim.

What is the state of the law on this issue? The Supreme Court of Michigan has just ruled that plaintiffs may not bring this type of claim. In Henry v. The Dow Chemical Corp. plaintiffs claimed that they were exposed to dioxin and needed medical monitoring. Dioxin is known to cause cancer, liver disease, and birth defects. The State of Michigan determined that the most likely source of the contamination was Dow's Midland plant.

The Court rejected the claims, saying that Michigan tort law required an actual, present injury for the plaintiffs to recover damages, and that claims for medical monitoring were an issue for the state legislature.

The dissent is fascinating and reflects a totally different philosophy of the role of tort law in society. Here is a sample: "Today, the majority holds that defendant's egregious long-term contamination of our environment and the resulting negative health effects to plaintiffs are just another accepted cost of doing business. But as long as defendant is not held responsible for the decisions it makes, it behooves corporations like defendant to continue with business practices that harm our residents because the courts will shield them from liability by claiming that they are powerless to act. And it is the people of our state who will pay the costs-with their money and with their lives-of allowing defendant to contaminate our environment with no repercussions. Sadly, this Court has resorted to a cost-benefit analysis to determine and,consequently, degrade the value of human life, and this is an analysis that I cannot support. ... Today, our Court has shirked its duty to protect plaintiffs and the people of our state, thereby leaving defendant's practices and interests unassailed. As such, I must respectfully dissent."

Alabama, Nevada and Kentucky have also rejected this type of claim. West Virginia allows such claims. Bower v. Westinghouse Electric Corp., 522 S.E.2d 424 (W. Va. 1999).

One can only hope that if one or more of these plaintiffs or their children ever get ill from dioxin no court will hold that their claim is time-barred.

ERISA Subrogation

Each one of us deals with it almost every day - subrogation or reimbursement.

Many of those plans are covered by ERISA. This post by John Wood on our ERISA blog may be of assistance to you.


Defendant Does Not Get Benefit of Plaintiff's Settlement With Co-Defendant

A defendant found 100% at fault claimed it should get the benefit of plaintiff's settlement with a prior defendant. The Tennessee Supreme Court said "No" in an opinion authored by Justice Anderson.

This result is correct. While it is true that the plaintiff here recovered 150% of his damages (because the prior settlement gave plaintiff 50% of his damages) the plaintiff took the risk of getting less than 100% of his damages by settling with one defendant and leaving an "empty chair." This is a calculated risk that worked out well for the plaintiff in this case, but could have just as easily resulted in the plaintiff receiving no additional recovery whatsoever.

The defendant had the right to prove the fault of the settling defendant and did not do so. It failed to carry its burden of proof, and the plaintiff got the benefit of that failure. If the defendant had carried its burden and proved that the settling defendant was 100% at fault the plaintiff would have had to "eat" the whatever amount of fault was assessed to the settling defendant over the 50% threshold.

Plaintiffs must have the upside benefit of a "good" deal if they have to face the risk of downside risk of a "bad" deal. The later was clearly the law, and the former had to be the law. A contrary ruling would have made it difficult one of multiple defendants to ever settle out - the plaintiff would have to increase the settlement demand from any one defendant to compensate for the risk.

Two New Punitive Damages Cases

The California Supreme Court has handed down two puntive damages cases that interpret State Farm v. Campbell.

One case is Johnson v. Ford Motor Corp., a case in which the plaintiff purchasers of a used vehicle proved that Ford had concealed a history of repairs to the vehicle. They also proved that Ford routinely committed such acts of fraud and earned significant profit from the conduct. The jury awarded $17,000+ in comnpensatory damages and $10 Million in punitive damages. The intermediate court cut the punitive award to $53,000+, saying that Ford could only be punished for what it did to the plaintiffs.

The Cal. Supreme Court reversed and remanded, saying that "California law has long endorsed the use of punitive damages to deter continuation or imitation of a corporation's course of wrongful conduct, and hence allowed consideration of that conduct's scale and profitability in determining the size of award that will vindicate the state's legitimate interests (footnote omitted). We do not read the high court's decisions, which specifically acknowledge that states may use punitive damages for punishment and deterrence, as mandating the abandonment of that principle." The Court also said that "[t]o the extent the evidence shows the defendant had a practice of engaging in, and profiting from, wrongful conduct similar to that which injured the plaintiff, such evidence may be considered on the question of how large a punitive damages award due process permits. Although the lower court discussed Ford's policies in addressing reprehensibility ― noting "it is reprehensible for a regulated manufacturer to implement a scheme that intentionally undermines the protections granted consumers by state law" ― the court gave no express weight, in its assessment of the constitutional maximum, to the profitability of that scheme to Ford or the scale at which Ford pursued it." On remand, the court of appeals was directed to weigh these and other factors.

Read about the the second case by clicking below.

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"Anticipatory" Wrongful Death

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. "Anticipatory" wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney's article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney's position on why the plaintiff should not have been permitted to seek such damages - which boil down to the fact that the plaintiff was not yet dead.

Even though the article is a discussion about the law of Kansas I think that you will find it interesting. I know of one such case that was tried in Tennessee about 15 years ago. I must admit it is a little strange to try a wrongful death case on behalf of someone who is still alive. On the other hand, given the fact that there can only be one lawsuit for the wrongful event (at least under Tennessee law), how can a plaintiff with a demonstrated reduction in life expectancy be made whole without a jury considering such damages?

The author indicates that the case is on appeal to the Kansas Supreme Court. I will attempt to find it and report back on what happened.

Anticipatory Wrongful Death - Part II

I wrote a couple days ago about "anticipatory" wrongful death. I mentioned that I would try to track down the case that gave rise to the article and see how it turned out.

I found it. The case is Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (Kan.2004). The Kansas Supreme Court reversed the award of wrongful death damages.

The Court said "in circumstances like Natalini's, even if a malpractice plaintiff's premature death is highly likely to be caused by the malpractice, plaintiff's survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A.2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)'s repose language would have barred the injured patient's own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff's claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ャ? 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires "existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death")."

In summary, the Court held that "there was no law supporting the instructions given here to permit Natalini's wife and children to recover damages expected to be caused them by the future wrongful death of their husband and father. He could not recover such damages on behalf of his wife and adult children in a medical malpractice action pursued while he was still living."

What would happen in Tennessee? Well, remember that in Tennessee the wrongful death action is brought by certain survivors (obviously) but they bring the action the decedent would have been able to bring but for his death. Therefore, a good argument can be made that the not-yet-dead decedent can bring a wrongful death claim

Punitive Damages From the Standpoint of the Defense

Punitive damages are hard to get and harder to keep. Defendants have been pushing the evils of punitive damages for over two decades now, and the United States Supreme Court has placed certain limitations on the award of such damages.

So, the reasonably prudent plaintiff's lawyer must give careful consideration about whether punitive damages should even be requested. The decision is a complicated one.

To get a better idea of where the defense will be coming from if you seek punitive damages, go to the 2005 Winter Edition of FDCC Quarterly, advance to page 73 and read the article entitled "Making the Most of Your Opportunities: State Farm - Based Litigation and Non-Litigation Strategies to Limit Corporate Liability for Punitive Damages." This 16-page article is a nice roadmap of what you can expect from your adversary.


Damages for Medical Bills Reduced By Contractual Discounts

The Florida Supreme Court has held that a plaintiff in a personal injury case cannot recover the gross amount of his medical bills when the plaintiff's HMO has negotiated a lower rate of reimbursement with the health care providers. The decision is based in part on a Florida statute codifying the collateral source rule. Read the decision here.

The majority opinion and the accompanying concurring opinions do a nice job collecting the law on this subject.

Look for this issue to be raised more frequently in Tennessee.


Can a Plaintiff Introduce Evidence That He Paid Medical Bills Out of HIs Own Pocket?

Plaintiff's vehicle was rear-ended by a vehicle driven by Defendant and Plaintiff was injured. Defendant successfully moved in limine for an order prohibiting Plaintiff from introducing evidence or arguing that he had paid his medical bills out of his own pocket. Defendant hired a doctor to evaluate the plaintiff; that doctor testified that Plaintiff's "self interest for monetary gain" may be influencing Plaintiff's complaints of pain.

The jury awarded $20,500, including $15,000 for medical expenses, an amount which was just slightly over one-half of the amount the Plaintiff had paid out of his own pocket for medical bills. The only issue on appeal was whether the trial judge should have excluded the evidence that the Plaintiff paid his own medical bills.

The California Court of Appeals reversed, saying that fact that the Plaintiff paid his own medical bills should have been admitted into evidence. Why? Because that fact helped demonstrate that the bills were reasonable and was helpful to the plaintiff in rebutting the defense that he was malingering. The Court found the exclusion of the evidence prejudicial, reversed the judgment and remanded the case for a new trial. Read the opinion here.


Damages in Legal Mal Case Include Punitives in Underlying Case

The defendant law firm was found to have negligently prepared a commercial litigation matter for trial. The plaintiff argued that it would have been able to recover punitive damages in the underlying case had it not been dismissed because of the law firm's negligence and therefore should be able to recover them in the second case.

The Illinois Court of Appeals agreed, stating that "we believe the proper focus of our analysis to be what would make the plaintiff whole with respect to the defendant attorney's negligence. When, as in this case, a jury has determined that the plaintiff would have been entitled to punitive damages but for the negligence of the attorney, then such damages must be recoverable in order for the plaintiff to be made whole. We note that this result is consistent with the general principle in this state that '[a] legal malpractice plaintiff is entitled to recover those sums which would have been recovered if the underlying suit had been successfully prosecuted.'" [citation omitted].

The court then affirmed a jury verdict including over $1,100,000 in punitive damges. Read the opinion by clicking here.

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Medicaid Subrogation Right Restricted

The Eighth Circuit Court of Appeals has limited Medicaid's subrogation interest in a tort recovery.

Plaintiff received substantial injuries in an auto wreck. She applied for Medicaid coverage and agreed to assign to the state her "right to any settlement, judgment or award" she might receive from any third parties. Medicaid paid over $215,000 in benefits on her behalf.

Medicaid and plaintiff agreed that plaintiff's damages exceeded $3,000,000. However, plaintiff settled her case against the tortfeasors for $550,000.

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Cost of Injuries and Death

I came across an interesting website from the National Safety Council the other day. The NSC does lots of stuff; one thing it does it estimate the cost of injuries and death in the USA.

For example, look at this table:

Average Comprehensive Cost by Injury Severity, 2003

Death $3,610,000
Incapacitating injury $181,000
Nonincapacitating evident injury $46,200
Possible injury $22,000
No injury $2,000

These numbers include lost "quality of life."

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Punitive Damage Verdict Upheld

State Farm v. Campbell was feared to be a dramatic change in the law of punitive damages, but some courts have not taken the bait. In Willow Inn, Inc. v. Public Service Mutual Ins. Co. the United States Court of Appeals for the Third Circuit affirmed a punitive damage award of 75 times the compensatory damage award.

The plaintiff's property was damaged by a tornado. The trial judge found that the insurer had engaged in obstructive tactics in settling the plaintiff's property damage claim, which resulted in a two-year delay in the payment of $125,000.

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Does a Defendant Receive Benefit for Discounted Medical Care?

Medicare reimburses hospitals and other health care providers at a rate less than "charges," i.e. the amount stated on the bill. The amount of the discount is often seventy percent or more. Should the medical expense recovery by a sucessful personal injury or wrongful death plaintiff be the amount of the charges or the discounted amount paid by Medicare?

The Supreme Court of Hawaii has ruled that the amount of the "charges" was the appropriate measure of recovery. In Bynum v. Mango the court said that "the tortfeasor is not entitled to reap the benefit of the plaintiff's elgibility for public assistance or from the government's economic clout in the health care market place." Click here to read the opinion. The dissent may be read by clicking here.

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Wrongful Death - Whose Claim Is It?

Tennessee's wrongful death law is a little unusual. The claim is the claim that the decedent would have been able to bring if the decedent were still alive.
Tennessee law spells out who has the right to bring an action of behalf of the decedent. The person who has the right to bring the claim is the only proper party plaintiff. Of course, after the Jordan opinion, certain beneficiaries can prove loss of consortium damages, but those parties are not true "plaintiffs" in the traditional sense of the word. Not only is it not necessary to add the other statutory beneficiaries but their efforts to remain in the case will be met with a motion to dismiss.

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