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

Here are some essential facts viewed in the light most favorable to the plaintiff: 

"Like the defendant in  [v. East Tennessee Pioneer Oil], in this case the [defendant]Johnsons clearly provided and controlled the means by which [their son the defendant] Jack was able to operate the vehicle. Regardless of whether the Johnsons purchased the vehicle from Ms. King and subsequently entrusted it to Jack,   [The plaintiff] Mr. Watrous has presented evidence that the Johnsons repaid a loan Jack had taken against the title to the vehicle the day before it became due. The Johnsons do not dispute that, had they not paid off the title loan, the Concorde would nave been repossessed by Tennessee Title Loans. Thus, as Mr. Watrous asserts, the Johnsons essentially “re-purchased” the Concorde from Tennessee Title Loans and provided it to Jack. Further, it is undisputed that Jack had no access to funds other than his student loans and those provided by the Johnsons, that the Johnsons provided Jack with the funds to repay loans that had become due, and that the Johnsons paid virtually all of Jack’s expenses. The Johnsons do not dispute that they had knowledge of Jack’s history of driving under the influence, or that Ms. Johnson provided Jack with a check in the amount of $100 to be cashed at a gas station the night on which Jack struck and killed Ms. Watrous."

The case is Watrous v. Johnson,   No. W2007-00814-COA-R3-CV  (Tenn. Ct. App. Nov. 17, 2007).  Read it here.

In  Maino v. The Southern Company, Inc., d/b/a The Southern Company, et al., W2007-00225-COA-R9-CV  (Tenn. Ct. App. NOv. 19, 2007) the Western Section of the Court of Appeals held that a products liability case brought  under the savings statute was permitted to proceed even though the statute of repose expired during the savings period.

The Court said that "[p]ermitting a plaintiff to refile an action that originally was filed within the statute of limitations and ten-year statute of repose, non-suited, and refiled within the one-year period  permitted by the savings statute does not frustrate the legislative intent of achieving a degree of  predictability for the purposes of setting product liability insurance premiums. Unlike mental incompetency, the extension of time under the savings statute is neither unpredictable nor without limitation. Additionally, no surprise or hardship is worked on a defendant or its insurance carrier where actual notice of an asserted claim is had within the statutory period. On the other hand, the purpose and spirit of the longstanding savings statute is realized."

Read the opinion here.

Have a wonderful, safe Thanksgiving.

Those questions will be explored by the Tennessee Supreme Court in the coming months.  The Court has accepted review of Martin v. Southern Railway Company, a railroad crossing death case.  Judge Franks, joined by Judge Swiney, found that the plaintiff's claims were barred as a matter of law.  Judge Susano dissented,  saying that a jury question was present.

Look for a decision in late Spring, 2008.

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.

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

Read more here.

"Among 240 cases, errors in judgment (173 of 240 [72%]), teamwork breakdowns (167 of 240 [70%]), and lack of technical competence (139 of 240 [58%]) were the most prevalent contributing factors. Lack of supervision and handoff problems were most prevalent types of teamwork problems, and both were disproportionately more common among errors that involved trainees than those that did not (respectively, 54% vs 7% [P < .001] and 20% vs 12% [P = .009]). The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. Trainee errors appeared more complex than nontrainee errors (mean of 3.8 contributing factors vs 2.5 [P < .001])."  You can access the article here.

Thanks to the DC Metro Malpractice Blog for informing me about the article.

However, the legislature has persuaded the court to withdraw proposed changes to the rules on several occasions.  The most frequent subject of objection has been a proposed change to Rule 26 of the Tennessee Rules of Civil Procedure which would permit the discovery of the existence and amount of liability insurance coverage.  Insurance companies, primarily Tennessee Farmers Mutual Insurance Company, opposes disclosures of insurance information.

Now the Tennessee Supreme Court is going to get the opportunity to determine whether to permit the discovery of insurance information by way of case law.  In Thomas v. Oldfield, No. M2006-02767-COA-R9-CV, (Tenn. Ct. App. Nov. 7, 2007) the intermediate court rejected a plaintiff's effort to discover insurance information.   The court held as follows:

"Informed by the plain meaning of “subject matter of the pending action” and the spirit and purpose of the rule as originally enacted, we do not view the liability insurance coverage in this case as coming within its scope because the information bears no relation to the issues before  the trial court. When the party seeking discovery has failed to state a connection between the  liability insurance information and the preparation of its case for trial, and when none is  otherwise apparent, that information falls outside the scope of discovery. "

There is no reason, absent historical precedent, that the courts permit the legislature to have any say whatsoever on what rules of procedure are adopted for use in our courts. 

This case will put the court on the hot seat.  Will it follow the majority rule and permit discovery of this information?  Or will it yield to the legislature?  Time will tell.

Read the decision here.

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.

Justice Holder wrote the opinion for the Court.  Here is a summary of the holding:

"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the  intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the  ground that a material term of the agreement is incapable of performance. We likewise affirm the  Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further  hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as  against public policy. In addition, we affirm the intermediate appellate court’s holding that the  agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement  breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable  contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate   court’s instruction to the trial court to enter an order compelling arbitration."

Read the entire opinion here

Of course, there has always been and will always be lawyers who cannot be trusted.  I know a few.  You know a few.  They are the scum of the profession,  who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).

Today, however, I think a quick note or email confirming a substantive conversation is a good thing - one that avoids the chance of innocent misunderstandings in the future.  My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.

So,  how do you write such a communication without sounding like a mistrustful jerk? 

1.  Use introductory phrases like this:  "This will confirm our conversation of ...."  or "this will follow-up on our telephone call of ...."

2.  Repeat the understanding accurately.  This is not a time for creative writing.

3.  If you cannot remember the exact substance point that was reached in the conversation, admit it, state what you think the resolution of the point should be, and invite comment.  It is far better to get the misunderstanding resolved now while the issue is fresh and your adversary has not taken a position (or you have not taken a position) based on a misunderstanding.

4.  If you think of another point that should have been discussed but was not, simply state that,  state your position, and invite comment.

5. Give your opponent an opportunity to correct any mistake in your summary of the conversation.  And tell your opponent that if you do not hear back from them to the contrary you will assume that your statements are correct.  Give your adversary a reasonable time under the circumstances to respond and, if you are taking critical steps based on a failure to respond to your inquiry (particularly if you imposed a short deadline) you would be well-advised to call your adversary and make sure there is no misunderstanding.

We all have lots to do in this stress-filled profession.  Innocent mis-recollections can occur.  We can reduce our stress by taking the simple step of communicating with our adversary in a non-threatening way and confirming details that can get lost over time.  Doing so will allow us to keep our eye on the ball - the speedy resolution of a  disagreement between clients - as opposed to getting into a fight with opposing counsel.

The project started about eight months ago and the book was delivered within ten days of the original target date.  The printer did a great job getting the book out in a timely fashion despite an unexpected glitch with the texture of the copper band on the cover. 

The reason for the "thank you" is that a good number of you have already placed an order for one (or more) books.  We shipped twenty-five books yesterday and will ship about that many tomorrow.  Orders continue to arrive via www.dayontortsbook.com.

I need yet another favor from those of you who chose to purchase the book.  When you are using the book in your practice, please make a note of what I could do to improve it.  Are there subjects I failed to include?  (I have already identified a couple.)  Should I have selected a different case to summarize as the leading case for any given subject?  Did I failure to include some important legal point in any summary?  Should I have included more unreported cases?  Should I have included an index?

Also, please make note of the free updates on the web at www.dayontortsbook.com.  (They will be available on November 15, 2007).  Am I updating the site frequently enough?   Are the updates helping you with your research effort?  Is the site appropriately organized?  What other information would you like to see on the site?

Time restrictions made it impossible for me to vet the book before a large audience before publication.  Therefore, I need your input to make the 2009 edition of the book one that will even do more to help you serve your clients.

The doctors (and occasionally the hospitals) have beat the tort reform drum for over thirty years, seeking further restrictions on the rights on patients to bring malpractice claims.  They launched an attack on Justice Holder's re-election effort.  They write op-ed pieces, talk to their patients, spend hundreds of thousands of dollars on political contributions each legislative cycle, and employ more and more lobbyists - all to get the Legislature to give them even more special treatment in the courtroom.

The legislative effort has failed to date, but the jury pool has been contaminated.  Those of us who handle medical malpractice cases know this from our experience, but a new report from the Department confirms that experience.

The numbers:

Total judgments    

2004           6       

2005           5

2006           6               

Total settlements                     

2004         444

2005         461

2006         453

Cases Dismissed   With No Payment

2004        1916

2005        2361

2006        2514           

Total settlement $                

2004   $108,000,000

2005    $119,000,000

2006   $100,000,000

Total judgment $              

2004   $1,950,00

2005    $6,100,00

2006     $4,950,000

(Dollar values rounded) (I originally had a beautiful table to display these numbers but my software will not let me publish in table format.  'Sorry about that.

There were two jury verdicts over $1,000,000 in medical malpractice cases in 2006.  One verdict was $8630.

The average settlement was $221,000 in 2006;  in 2005 it was $258,000.

This report sends one other message:  statistics like these are absolutely essential to having an informed discussion about the need for any sort of litigation reform.  The law that mandates the reporting of this information is due to expire in one year.  The law needs to be extended so that the public can continue to have access to this important information.

Here is a copy of the full report.

"Annual statements of Medical Mutual Insurance Co. of North Carolina filed with the N.C. Department of Insurance from 2001 through 2006 were studied and evaluated by former Missouri Insurance Commissioner Jay Angoff and some of his findings are:

Underwriting gain — the amount they earned on their insurance business — was up by 948 percent in only two years, from $2.1 million in 2004 to $22 million in 2006.

The surplus they hold, in addition to the amount which they set aside to pay claims in the future, nearly quadrupled in six years, rising from $35.3 million in 2001 to $127 million in 2006. Despite the surplus, no dividends were paid to their policyholders (physicians) in any year throughout the period 2001-2006.

They increased rates for physicians in 2006 even though their own data indicated that both the size and frequency of claims were decreasing. From 2001 through 2006, they collected $621 million in premiums and paid out only $184 million in claims.

We will not have data about SVMIC until the Spring of 2008, but my guess is that we will see a decrease in both the number of claims and the average claim payment again. 

Thanks to the folks at Tort Deform for letting me know about this article.