Articles Posted in Miscellaneous

I  did not post for two days in a row and received four inquires about the state of my health.

I am alive.

I am in a middle of finishing a project that I will tell you more about next week.  Today I will be consumed with four depositions and a meeting with a new client on what looks like a great products case against an automobile manufacturer.   We are also filing two new cases today in Knoxville, a products case in federal court and a road construction / signage negligence case in state court.  It has been more than the ordinary flurry of activity at Day & Blair this week, but I am scrambling to get everything done so that I can relax at the Titans-Colts game Sunday afternoon.

They have broken the $1000 per hour barrier in New York.  

Of course, Gary Brewer and Steve Terry were charging that four years ago in Bulls Gap.

My wife Joy and I are pleased to announce the birth of our daughter, Kaitlin Irene Day, yesterday at 2:41 p.m. at Baptist Hospital in Nashville.  Kate weighed in at an unbelievable 10 pounds, 9 1/2 ounces and is 21 an 3/4 inches long. 

She began riding a tricycle last evening.

Kate and Joy are doing great.  We are very blessed to have had an incident-free pregnancy followed by the delivery of a healthy, beautiful baby girl.  Indeed, this is the third time I have been blessed with a strong, healthy child – Sarah was born 16 years ago and Michael 12 years ago. 

I wrote on July 30  about a decision from the 10th Circuit Court of Appeals that addressed the issue of the effect of the failure of a plaintiff in a personal injury action to disclose the existence of the claim on a bankruptcy petition and the failure to disclose the claim during a hearing.

Tennessee Court of Appeals Judge Sharon Lee wrote to tell me about a decision from the Tennessee Court of Appeals (Eastern Section) that addressed the interaction of bankruptcy law and personal injury claims.  Here is the summary paragraph in Headrick v. Bradley County Memorial Hospital  written by Judge Lee:

"In this appeal, the issue presented is whether a party has standing to pursue a personal injury claim in state court that accrued after the filing of the party’s bankruptcy petition and before the closing of the bankruptcy case. Ms. Headrick filed a Chapter 13 bankruptcy petition. While the bankruptcy case was pending, Ms. Headrick was involved in a single car accident and was treated for her injuries by Dr. Daniel Johnson at Bradley County Memorial Hospital. Subsequently, she converted her Chapter 13 bankruptcy case to a Chapter 7 bankruptcy case. While the Chapter 7 case was still pending, she discovered that she suffered a hip fracture in the car accident which she alleges that Dr. Johnson and the Hospital failed to timely diagnose and treat. Thereafter, Ms. Headrick received a discharge in bankruptcy and the bankruptcy case was closed. Ms. Headrick then filed a medical negligence case against Dr. Johnson and Bradley Memorial Hospital. The Defendants filed a motion for summary judgment asserting that Ms. Headrick did not have standing to bring the case. The trial court agreed and dismissed the case. After review of the record and applicable authorities, we hold that Ms. Headrick’s post-bankruptcy cause of action is not part of the bankruptcy estate and therefore, as a matter of law Ms. Headrick did have standing to bring the lawsuit. The trial court’s decision is reversed."

Judge Keeton, co-author  of Prosser and Keeton on Torts, died July 1, 2007 in Cambridge, Massachusetts.    Keeton was a professor at Harvard and later became a federal district judge.  He was 87.

Investigations following the collapse of the bridge in Minneapolis will tell us how it occurred and whether anyone bears responsibility for the failure. 

In Tennessee, it would be very difficult for a case to be brought the most obvious potential defendants.  Our state and local governments have a damage cap that make it impossible to economically pursue claims after such a disaster.  Our "architects, engineers and contractors immunity act" make it impossible for them to be held responsible more than four years (ok, four plus one years) after construction (absent a showing of fraud).  Our products liability act gives manufacturers of any component parts a get-out-of-jail-free after ten years. 

Of course, perhaps contractor(s) working on the bridge at the time may be found to have some fault and perhaps a private firm did an inspection and did not perform it carefully – the facts will trickle out over the next few days.   But in Tennessee the ability of these potential defendants to assert fault against the potential defendants mentioned above and have that fault reduce the recovery of the plaintiff (the magic of several liability and allowing fault to be placed on immune non-parties) make these cases a challenge, too. 

This post has nothing to do with torts, except perhaps the tort of outrage.  But I read about this op-ed piece in Trial Ad Notes, and thought that at least some of you would enjoy it.

John Koppel, who has served at the Department of Justice for over 25 years, doesn’t like what is going on there.  Not one bit.  And he is naming names.

He ends his remarks with these words:  " I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk."

It is not uncommon for plaintiffs in personal injury cases to get into financial problems.  Medical bills need to be paid and the injured person’s income is often disrupted and may be nonexistent.

But, this opinion makes it clear that the failure to disclose the existence of the pending personal injury suit can result in its dismissal.  In Gardner v. Union Pacific Railway Co., No. 05-8106 (10th Cir. July 6, 2007) the plaintiff failed to disclose his pending personal injury suit filed under the Rail Road Workers’ Compensation Act in his post-accident bankruptcy and failed to tell the truth about the lawsuit in a meeting of creditors.  He received a discharge of his debts under Chapter 7 of the Code.

Almost a year later plaintiff’s personal injury attorney became aware of the filing and notified the bankruptcy trustee, who in turn moved to re-open the bankruptcy and list the pending case as an asset.  The defendants in the personal injury case got involved before the federal district court and asked the court to dismiss the case the grounds of judicial estoppel.  The federal district judge agreed, saying "[w]hat the Court finds most telling . . . is the fact that when given the opportunity at the meeting of creditors to reveal the pending litigation, Mr. Gardner did not disclose his personal injury action. First, he explicitly denied having a personal injury action pending. Second, his attorney represented that the claim was not workers’ compensation “per se,” but indicated that any claim was related to an on-the-job injury, leading the Trustee to believe that the claim was similar in nature to a workers’ compensation claim. Third, Mr. Gardner’s attorney referred to UPRR’s failure to provide hearing aids to Mr. Gardner, misrepresenting the extent of the claims involved. Mr. Gardner had an affirmative duty to speak up and let the trustee know the nature of his lawsuit against UPRR as well as eight other defendants. . . ."

The Tennessee Supreme Court will hear arguments in the following cases that are of interest to tort lawyers in Knoxville on September  6:

Konvalinka v. Chattanooga-Hamilton County Hospital Authority – (Swiney, author) (Susano & Lee) –
1. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt without any evidentiary hearing;
2. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt when case law supports a separate request for documents pursuant to a statute not being in violation of a stay of litigation.
3. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt for pursuing a Tennessee public records act request when only lower court proceedings in the Stratienko action were stayed, and not a separate action to enforce the right of access to public documents.
4. Whether the Court of Appeals erred finding contempt when counsel acted in good faith and reasonably interpreted the stay order at issue pursuant to existing law.
5. Whether the Court of Appeals erred in not remanding this matter for production of the requested documents, and in not awarding attorney’s fees pursuant to the valid public records act request.

Tenn. Farmers Life Reassurance Co. v. Rose – (Susano) (Franks, concurring;
Swiney, dissenting)
1. Whether the C/A erred in affirming the Trial Court’s grant of summary judgment by concluding that the attorney in fact under the durable general power of attorney did not have the specific authority to execute an effective life insurance change of beneficiary form, notwithstanding the
fact that the power of attorney specifically authorized the attorney in fact to "transact all insurance business", to "take any other action necessary or proper in this regard . . .", and to "execute and perform all and every act and thing whatsoever without limitation whatever and without being confined to the specific acts hereinabove set out . . . ."

Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.