Articles Posted in Miscellaneous

The Colorado Supreme Court has rejected a challenge to the collateral source rule and has ruled that a plaintiff may recover the full, not discounted, amount of medical bills in a personal injury case.

In Volunteers of America Colorado Branch v. Gardenswartz, Case No. 09SC20  (Col. Nov. 15, 2010) the court explained the purpose of the rule:

The rule’s purpose is to prevent a tortfeasor from benefitting, in the form of reduced liability, from compensation in the form of money or services that the victim may receive from a third-party source. See Quinones v. Pa. Gen. Ins.Co., 804 F.2d 1167, 1171 (10th Cir. 1986) (“The rule evolved around the commonsense notion that a tortfeasor ought not be excused because the victim was compensated by another source, often by insurance.”). Accordingly, the rule is somewhat punitive in nature. It prohibits the wrong-doer from enjoying the benefits procured by the injured plaintiff. If either party is to receive a windfall, the rule awards it to the injured plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits obtained by the plaintiff. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992) (“To the extent that either party received a windfall, it was considered more just that the benefit be realized by the plaintiff in the form of double recovery rather than by the tortfeasor in the form of reduced liability.”).

The United States Court of Appeals for the Fifth Circuit has ruled that a trial judge appropriately admitted surveillance videos of the plaintiff into evidence.  The videos were taken in a case where the quality of life of the plaintiff after the accident was "hotly disputed."   The videos showed the plaintiff engaged in activities at casinos, but were admitted despite an objection under FRE 403 that the probative value was outweighed by the danger of unfair prejudice that some jurors might consider his gambling immoral.

The Court explained that  the plaintiff’s “post-accident quality of life was hotly disputed, and plaintiff’s witnesses testified in detail regarding the allegedly severe post-accident limitations plaintiff faces, including the inability to count money, make change, or be in crowds,”  and thus concluded that the video’s probative value of his casinos visits “contradict[ed] these statements” and that this “weighs heavily against a hypothetical juror’s moral aversion to gambling.” 

The case is Baker v. Canadian National / Illinois Central R.R., 536 F.3d 357 (5th Cir. 2008).

Our Justice Programs seminar series will be held on Nov. 18 and 19 in Nashville.  Former Tennessee Supreme Court Justice Penny White, Court of Criminal Appeals Judge Joe Riley, and I also will present the two-day programs in Memphis (Dec. 9 and 10) and and Knoxville (Dec. 2 and 3) . Each program provides the fifteen (15) hours required CLE and includes four (4) hours of ethics/professionalism/dual credit on Friday afternoon. You may register for both days (all 15 hours), one and a half days (11 hours), or the Friday afternoon ethics program (4 hours).

Here is  what is on the agenda

Tort Law / Comparative Fault – John Day

 Our Justice Programs seminar series will be held on Nov. 11 and 12 in Johnson City.  Former Tennessee Supreme Court Justice Penny White, Court of Criminal Appeals Judge Joe Riley, and I also will present the two-day programs in Memphis (Dec. 9 and 10), Nashville (Nov. 18 and 19), and Knoxville (Dec. 2 and 3) . Each program provides the fifteen (15) hours required CLE and includes four (4) hours of ethics/professionalism/dual credit on Friday afternoon. You may register for both days (all 15 hours), one and a half days (11 hours), or the Friday afternoon ethics program (4 hours).

Here is  what is on the agenda

Tort Law / Comparative Fault – John Day

Our Justice Programs seminar series will be held on Nov. 11 and 12 in Johnson City.  Former Tennessee Supreme Court Justice Penny White, Court of Criminal Appeals Judge Joe Riley, and I also will present the two-day programs in Memphis (Dec. 9 and 10), Nashville (Nov. 18 ans 19), and Knoxville (Dec. 2 and 3) . Each program provides the fifteen (15) hours required CLE and includes four (4) hours of ethics/professionalism/dual credit on Friday afternoon. You may register for both days (all 15 hours), one and a half days (11 hours), or the Friday afternoon ethics program (4 hours).

Here is  what is on the agenda

Tort Law / Comparative Fault – John Day

The Internet Cases blog alerted me to this case.  Apparently, plaintiffs counsel in a medical malpractice case began using his laptop to "Google" potential jurors to learn background information about them.  The Court questioned this effort as follows:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFFS COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

Penny White, Joe Riley and I are on the road again this Fall as part of our annual Justice Programs seminar.   You wouldn’t be reading this blog if you didn’t have an interest in Tennessee tort law, and I will be doing my annual summary of changes in the law of torts as part of the two-day, 15-hour program..

Here is our schedule for this year:

EAST TENNESSEE

Have you subscribed to the Tennessee Trial Law Report – Tort Law Edition?   Each month Brandon Bass and I summarize the recent Tennessee appellate decisions in the field of tort,civil procedure, evidence and trial law and publish those summaries in the TTLR.   Importantly, we do not just regurgitate the opinion – we summarize it and give our opinion of whether the decision is consistent or inconsistent with prior law and the public policy of Tennessee.

The newsletter also includes an article by me on some aspect of the law of civil trial in Tennessee.  Next month’s edition includes Part 4 of my series on the law of the use of depositions at trial.  

Finally, the newsletter includes a list of all cases pending before the Tennessee Supreme Court that are of interest to tort lawyers, indicating the status of those cases before the court (as best we can tell from public data).