Articles Posted in Miscellaneous

Texas has a rule that permits presuit depositions to be taken, not just be preserve testimony but also to do discovery to determine the merits of a claim before filing suit.

Professor Lonny Hoffman has written about the subject.  Here is an abstract of the article:

"What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another. The ability of private parties to compel the production of information, documents or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Beyond the lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or those most closely involved in civil procedural reform to gather empirical evidence to try to fix how important to the institution and maintenance of civil suits is the right to take presuit investigatory discovery. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state’s presuit discovery rule, most likely on the order of approximately one out of two lawyer and judge respondents reporting at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately 60% of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining 40% of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements to bringing suit, as well as the pull of practical considerations, may plausibly explain the incidence of use of the state’s presuit discovery rule. Read in this manner, the empirical evidence suggests an important relationship exists between access to information and access to justice."

The Tennessee Supreme Court will hear the following tort cases in Jackson in April:

Dewayne E. Holloway v. State:    Whether the Claims Commission lacked subject matter jurisdiction under Tennessee Code Annotated section 9-8-307(a)(1)(E) to adjudicate the plaintiff’s wrongful death claim. 

Troup v. Fischer Steel Corporation:   Whether the Court of Appeals erred in (reversing the trial court and) determining in this negligence action in which the employee of a roofing subcontractor, from which the employee has received workers’ compensation benefits, sues a steel subcontractor, the jury may assign fault to the general contractor, which is a “statutory employer” but did not pay any workers’ compensation benefits.

Charlie Weis, head football coach at Notre Dame, sued two doctors in connection with injuries he received following gastric bypass surgery.  The trial in underway in Boston.

He alleges that he suffered internal bleeding after the procedure and that his doctors failed to promptly correct it.  The doctors say that internal bleeding is a known, disclosed risk of the procedure and that they did not move more aggressively to correct the condition because of the risk of pulmonary embolus.

Read more here.  Weis testified yesterday.

Business Tennessee magazine has released its list of the 150 best lawyers in Tennessee.  Here is the list by area of practice.

These lists come out from time to time and I am always surprised to see that some lawyers I think are just fantastic are not included.  I don’t know exactly how the process works but I am honored to be included on the list again this year.

I was in Knoxville yesterday and had the opportunity to talk with my friend Howard Vogel and his son Alex.  We were talking blogs (the three of us make a fun group, don’t we?) and Howard or Alex asked what blogs I regularly read.

I thought I would share the list. 

What About Clients?

I really enjoy reading Blog 702.  The writing is great, the posts informative.  I wish they had a permalink function in their blogging program, but this post is too good not to re-print here in toto.

2/7/07 UPDATE:  I got a comment from the folks at Blog 702 and they informed me that they do have a permalink function.  My bad.  Here it is the link.

"A post by Ted Frank at Point of Law directs us to another post, by Jim Beck and Mark Herrmann at Drug and Device Law, which adverts, in turn, to an article in the December 2006 issue of Neurology entitled "The impact of litigation on neurologic research." The article is authored by two faculty at the Washington University School of Medicine (Drs. Brad A. Racette and Joel S. Perlmutter) and two attorneys (Ann Bradley, internal university counsel, and Carrie A. Wrisberg, a partner in the St. Louis law firm Moser & Marsalek).

I never met Molly Ivins, but wish I had.  She was a gifted writer with a wonderful sense of humor.

Her death is a real loss for all of us who love to read about politics.

The Supreme Court of Arizona has ruled that  persons who are prescribed drugs owe a duty of care, making them potentially liable for negligence, when they improperly give their drugs to others.

The defendant shared his prescribed drug (oxycodone) with others at a party.  One of the women he shared the drugs with gave them to the plaintiff’s decedent, who died that night from the combined toxicity of alcohol and oxcyodone.  The plaintiff (decedent’s mother) sued, and defendant denied that he owed a duty to the decedent.

The Court held that because Arizona had  statutes prohibiting the sharing of prescription drugs a duty existed.  The Court said that "[b]ecause [the decedent] is within the class of persons to be protected by the statute and the harm that occurred here is the risk that the statute sought to protect against, these statutes create a tort duty."

Well, as you probably have heard, a woman who participated in a "Hold your wee for a Wii" contest died of water intoxication.   According to the Sacramento Bee, "the contestants were given two minutes to drink an 8 ounce bottles of water every ten minutes. The winner was the last one to use the restroom."

An attorney has announced that suit will be filed against the station.

The allegations – and apparently undisputed facts – are that the disc jockeys laughed about the risk to participants and knew the risk of the stunt could be fatal.  Indeed, according to the Bee article, "a nurse called into the program to warn that drinking too much water was dangerous."

Most of us know judges who from time to time have disagreements with their colleagues and know other judges who simply don’t like a judge they have to work with every day.  There is nothing unusual about this – judges are people and it is unrealistic for anyone to expect that the day a person puts on a robe he or she is able to silently accept the human failings of others (or not have failings of their own).

But in Tennessee those disagreements rarely find their way to the public eye.  Indeed, I have no memory of ever reading a Tennessee court opinion in which one judge criticized the intellect or integrity of another judge.  We simply don’t do that "down here."

Things are a little different in Michigan – an "up there" state.  Those of you who love the law (or lack a real life) already know that the Supreme Court in Michigan is polarized.  But I admit that I had no idea that it had gotten downright ugly, as reflected in this memo dissenting from the election of the chief justice.