Articles Posted in Miscellaneous

The Tennessee Supreme Court has released an opinion that settles (and changes) the law on the "prior suit pending" doctrine.  The issue rises infrequently in tort cases, but is still worthy of note.

In Tennessee a worker’s compensation lawsuit cannot be filed until after a benefit review conference (BRC) does not result in resolution of the case.  Either the employer or the employee may file a worker’s compensation complaint.  When the employee and employer reside in two different judicial circuits and one or both lawyers perceive that one forum is more favorable than the other there is a literal race to see who can file first where after an unsuccessful BRC.  If both file on the same day which action is permitted to proceed?

The Court said that "a lawsuit becomes “pending” when the complaint is filed. Although the filing of the complaint initiates the pendency of the case, a subsequent case will be subject to dismissal under the prior suit pending doctrine only if the court in the prior case has acquired personal jurisdiction over the parties." 

I have been in Washington, D.C. since Sunday attending the 85th Annual Meeting of the American Law Institute.  Thanks to Howard Vogel, Judge Cissy Daughtrey, Chief Justice Mickey Barker, Bill Wagner, and Lucian Pera I was elected to membership in the ALI in the Fall of 2006. 

We heard from Justice Ginsberg Monday morning; the rest of the day was left to a debate on a tentative draft of certain aspects of the law of aggregate litigation.  On Tuesday we dealt with the law of nonprofit organizations and unjust enrichment. 

There were no  pure tort projects on the agenda for this meeting.  I belong to the Members Consultative Group for two projects, Liability for Physical and Emotional Harm and Economic Torts and Related Wrongs.  Here is a description of the drafting process.

This article by Judge Richard Posner (7th Circuit Court of Appeals) does a fine job discussing appellate briefs and oral arguments.

A sample:

"The second biggest mistake that appellate advocates make—after exaggerating how much the judges know about or are willing to devote time to learning about a given appeal—is to think that they can win by rubbing the judges’ noses in the precedents. In an argued civil case, as I have just been emphasizing, there probably is no dispositive precedent—otherwise the case would probably not have gotten to the point of an orally argued appeal. And if there is no dispositive precedent, then unless the appellate judges are very gullible, it is futile to argue the case as if there were.

"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website.  The article notes that   (a)"of the 270,491 deaths that occurred among patients who experienced one or more patient safety incidents, 238,337 were potentially preventable," and (b) "if all hospitals performed at the level of the top-ranked hospitals, about 220,106 patient safety incidents and 37,214 patient deaths could have been avoided, and about $2 billion could have been saved."

Here is a copy of the HealthGrades press release.  It includes this interesting remark: "We now have convincing case studies that perfection is possible when will to change and improve is present and the effort is made to implement new practices. While these examples illustrate that we have a much clearer idea of what we need to do, formidable barriers remain. Many in the industry continue to deny that truly safe care is achievable, thus the status quo continues, resulting in variation in patient safety in U.S. hospitals that is large and unpredictable. Numerous studies, including the 2007 AHRQ National Healthcare Quality Report (NHQR) assessing the state of hospital quality and patient safety, conclude and support the findings the progress remains modest and variation in healthcare quality remains high.”

The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.

In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence.  As the Court explained, "[a] plaintiff may, in a single lawsuit, assert many causes of action against a defendant. The considerations limiting a plaintiff’s available causes of action in the typical case are that the plaintiff must be able to demonstrate a prime facie case for each cause of action and that a plaintiff may ultimately recover only once for an injury."

The opinion also gives a nice summary of the common law of negligent hiring, training, supervision, or entrustment:  "in circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. See Restatement (Second) of Torts § 317 (1965) (Cited with approval in Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992))."

Well, it has been a longer break than I planned.  The trial started on February 25 and went to the jury shortly before lunch yesterday, March 11.   The jury actually started deliberations at about 12:45 and is returning to the courthouse for further deliberations today at 8:00 a.m.

Obviously, it  would not be appropriate for me to discuss the trial while the jury is still out. 

This blog started three years ago this week.  There have been 1175 posts totaling millions of words made to it.  In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients.

I am taking a break for a couple weeks.  I start a medical malpractice wrongful death trial on February 25 and I simply do not have time to post  between now and the end of trial. 

Trials are, well, trials – they are called that for a reason.  Medical malpractice trials are a particular challenge, and medical malpractice trials with multiple defendants that take place out of town are all-consuming.  Although I have been involved in the case from the start, Rebecca Blair has taken the lead on case and trial preparation to date.  We argued motions in limine ten days ago so for the last three weeks a substantial percentage of my time has been devoted to this case.

We live in a log cabin in the woods in Williamson County.   This morning we are blessed with a strong rain – weather that we haven’t seen much of in the last year.

Other than frequent sightings of deer and turkeys, one of the joys of living here is the sound of rain pelting the  tin roof.  I love to sit on the front porch, drink strong coffee, and listen to the rain.  It is little cool to sit outside this morning but the rain is hard enough that I can enjoy the sound from inside our home.

Rain, Blue Mountain coffee, and thoughts of superceding cause.  It is going to be a great day.

The Tennessee Court of Appeals (Middle Section) has ruled that "trial court has the discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

The Court quoted with approval this language from a court in Michigan:  "In cases involving the loss or destruction of evidence, a court must be able to make such rulings as necessary to promote fairness and justice. To deny the courts the power to sanction a party in such circumstances would only encourage unscrupulous parties to destroy damaging evidence before a court order has been issued. Furthermore, regardless of whether evidence is lost as the result of a deliberate act
or simple negligence, the other party is unfairly prejudiced because it is unable to challenge or respond to the evidence."

Presumably, a court could strike an answer and enter a judgment for the plaintiff if  a defendant’s "destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional."

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