Articles Posted in General Legal News

In Choate ex rel. Clayton v. Vanderbilt Univ., No. M2014-00630-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2016), the Court of Appeals affirmed summary judgment for a property owner when a patient was injured while attempting to get on a scale at a dialysis clinic.

Plaintiff was the decedent patient’s former spouse and brought the action on behalf of the patient’s minor child. Patient was suffering from end-stage renal disease and receiving dialysis treatments three times each week. His treatments were at the Vanderbilt Dialysis Clinic, but although Vanderbilt University owned the building and property, the clinic was operated by Bio-Medical Applications of Tennessee, Inc. Patient had been going to this clinic for several years.

When patient arrived on the day at issue, he arrived in a wheelchair and a Bio-Medical employee assisted him with his admission. Patients are weighed before dialysis can begin, but patient asked to go to the restroom first. A Bio-Medical employee wheeled patient to the restroom and told him to use the call string inside to let her know when he was finished. After not hearing from the patient for ten minutes, the employee checked on the patient and again reiterated that he should use the call string when finished. When the patient finished using the restroom, he left the area and asked the facility secretary to show him into the treatment area. She took him to an isolation room and instructed him to wait there for his patient care technician to come get him. Patient disregarded these instructions and left the room alone.

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The Tennessee Bar Association has published my article about the recent Moreno decision and the unintended consequences of that decision.

The article is titled “Donald Margolis, “Moreno,’ and Unintended Consequences.”

An excerpt:

Dr. Roger Herrin, upset that he had to share money with those who were injured in a car wreck that also  took his son’s life, paid the $500,000 he owed in quarters.   7,500 hundred pounds of quarters.  Why quarters?  "Because I couldn’t do it in pennies," Herrin reportedly said.

There has been lots of press about this event, but none of it gave me a clear picture of the legal dispute that gave rise to Herrin acting in such a fashion.  Here is what my research revealed:

In what all would agree was a tragic event, Herrin’s 15-year old son was killed and three other people were injured in an intersection wreck in 2001.   The at-fault driver had $100,000 in applicable liability insurance limits; this sum was paid into court.  No agreement could be reached on how to divide the $100,000, so the trial judge decided the value of each individual case and divided the money pro rata.  The Herrin death case was given the greatest value – a little over $10,000,000, just over 90% of the total damages the judge found to be present (almost $11,000,000 for all plaintiffs.)

 Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be.  The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants. 

What follows is a second list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State’s website.  I previously wrote a post about 2012 legislation of interest to Tennessee personal injury lawyers that was available on May 4.


  • Public Chapter 884:  purports to wipe out the liability of car dealerships for loaning cars to certain customers who have proof of insurance.
  • Public Chapter 902:  addresses when punitive damages may be awarded in Tennessee
  • Public Chapter 907:  prohibits children as passengers on motorcycles unless their legs can reach the foot-pegs.
  • Public Chapter 913:  creates a rebuttable presumption that those who sign insurance policy application have read it and  that when premium is paid all policyholders accept coverage as stated in policy or amendments thereto.
  • Public Chapter 922:  sets forth duty of landowners to those who are determined to be "trespassers".
  • Public Chapter 926:  sets up statutory scheme to permit defense counsel in health care liability actions to have ex parte communications with plaintiff’s health care providers.
  • Public Chapter 998:  authorizes clerks of court to set up electronic filing system and charge filing fees.
  • Public Chapter 1046:  sets up a statutory scheme requiring courts to make loser of Rule 12 motions pay opposing party’s fees and costs under certain circumstances.
  • Public Chapter 1108:  requires police officers determine whether physical barriers are present at the scene of an accident.

The increased efforts by the Legislature to codify tort law will mean that tort lawyers will be looking to statutory law to determine whether there are limits imposed on the common law or new defenses.  This is a pretty significant change for lawyers – historically, most tort law was common law.  

As mentioned yesterday, the Tennessee Administrative Office of the Courts has released the 2009-2010 Annual Report of the Judiciary.  The Report Contains statistical data about our court system.

Today we look at information about tort cases that were filed or tried in state court in Tennessee.  "Tort cases" includes medical malpractice cases.

There were 10,469 tort cases filed in Tennessee in the year ending June 30, 2010.  This is down about 6% from two years earlier – in the year ended June 30, 2008, there were 11,171 filings. 

ABA  reports that  "in 1996, a Delaware hospital conducted an internal investigation of a pediatrician accused of inappropriate conduct with young patients and concluded he had done nothing wrong. Hence, administrators reportedly never informed the state’s medical disciplinary board or law enforcement authorities of the allegations."

Now, the hospital is fearing bankruptcy because the doctor has been charged with rape and sexual abuse of over 100 children, 18 of whom have filed lawsuits.  The doctor has been indicted on over 400 counts of child sex abuse.  The name of the doctor is Earl Bradley, who is alleged to have videotaped some of his misconduct. 

The hospital is Beebe Medical Center, a 210-bed facility in Lewes, Delaware.   State law requires hospitals to report suspected professional misconduct to the state medical board.  The hospital apparently did not do so.

What is the principle place of business for a corporation for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1)?   Well, what you thought you knew is no longer the law.

The United States Supreme Court ruled yesterday that the phrase

"principal place of business’ is best read asreferring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its head-quarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corpora-tion holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).

Yep.  That is what Richard Fields is doing.  He is the chief executive of Juridica Capital Management, an organization which runs a fund that invests in one side of a lawsuit in exchange for a share of any winnings.  The company invests in commercial litigation.

This article in the New York Times reports that a unit of Credit Suisse and Juris Capital have a similar business model, as do several unnamed hedge funds.

Juridica has $200 Million available, with an average investment of $7.5 million.

A defense firm has been threatened with severe sanctions for allegedly engaging in a pattern of fraudulently removing cases from state court to federal court in Louisiana.  Sanctions on the table?  Not only a financial penalty but also also barring members of the firm from practicing in federal court.

Here is a copy of the federal judge’s memorandum opinion in the case.  The opinion certainly makes it appear that the judge has done his homework and is, shall I say, extremely irritated.

This article explains the lengths to which the firm is going to avoid sanctions.

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