Day on Torts

July 29, 2013

Tennessee Products Liability Statute of Repose Applied to Bar Claim

Tennessee has a ten-year statute of repose that bars most products liability claims ten years after the product at issue was sold to the first user or consumer. Unlike a statute of limitation, a statute of repose can bar a claim even before plaintiff was injured.

The United States Court of Appeals for the Sixth Circuit recently applied the ten year statute of repose to bar a claim arising in Tennessee for losses caused by a defect in a car owned by a Tennessee consumer. It was undisputed that the car had been sold to the first user or consumer more than ten years before the incident giving rise to the claim. However, the plaintiff’s lawyers sought to avoid the statute of repose by filing suit against the manufacturer of the car in Michigan, the home state of the manufacturer of the vehicle.

In Standard Fire Ins. Co. v. Ford Motor Co., No. 12-1583 (6th Cir. July 24, 2013), the court held that the claim was governed by Tennessee law and that the Tennessee statute of repose barred the claim. The opinion undertakes an extensive review of Michigan’s conflict of law principles in tort claims.

July 15, 2013

Tennessee Medical Malpractice Cases – Information From the National Practitioner Data Bank

by The Law Offices of John Day, P.C.

The National Practitioner Data Bank collects data about medical malpractice settlements of $10,000 and more. Here is some recent information about Tennessee physician judgments and settlements as reported to the Data Bank:

There were 155 reported payments in 2011, down from 192 10 years earlier in 2001.
31 of those payments were under $50,000.
23 of those payments were between $50,000 and $99,000.
26 of those payments were between $100,000 and $249,000.
39 of those payments were between $250,000 and $499,000
30 of those payments were between $500,000 and $999,999.
6 of those payments were between $1,000,000 and $1,999,999.
None of those payments exceeded $2,000,000.
Total payments in 2011 were $46,850,000
Thus, the mean payout in 2011 was a little over $300,000.
The median payout in 2011 was $200,000, placing us 16th in the nation. Massachusetts was the highest at $404,000.
Total payments in 2001 were $48,950,000.
The year with the largest total payments was 2006 – $54,980,000.
The median delay from incident to payment in 2011 was 4.0 years. The mean delay from incident to payment in 2011 was 4.5 years.
You can read the 2011 Data Bank report by clicking on the link.

All of this data is very interesting, but I was particularly intrigued by the "delay in payment" data. We work particularly hard in our office to reduce this period and, quite frankly, I don’t recall any case in our office ever having a four-year delay from incident to payment except one: a case won at trial and appealed by one of several defendants. The verdict against that doctor was affirmed and payment was made about four years after the incident.

We recently resolved a case that was set for trial in late June, 2013. Our client died as a result of an error made in an emergency room in early 2011. The case had been filed for about 18 months. Our case could have been set for trial three or four months earlier but for scheduling issues with the court and defense counsel.

July 14, 2013

A Comment on State v. Zimmerman

by The Law Offices of John Day, P.C.

Ok, State v. Zimmerman was a criminal case, not a civil case. much less a tort case. (Zimmerman may be sued by Martin’s family – more on that below). But, in the "for what it’s worth department, here are my comments on the criminal verdict:

1. I don’t know if Zimmerman murdered Martin or if he did not.

2. I know that Zimmerman killed Martin.

July 2, 2013

An Important Change to the Tennessee Statute of Limitations That Affects the Rights of the Mentally Disabled

by The Law Offices of John Day, P.C.

For many years, the Tennessee statute of limitations was tolled for those of "unsound mind." That law has now changed, and the statue of limitations is tolled only for those who are "adjudicated incompetent." Tenn. Code Ann. Section 28-1-106. Here is the text of the newly worded statute:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Here is how the bill was changed in Public Chapter 47 of the 2011 legislation:

June 27, 2013

Case Selection for Plaintiff’s Lawyers – 2013 Update

by The Law Offices of John Day, P.C.

About eight years ago I wrote a guest post for Legal Underground that addressed the importance of case selection by plaintiff’s lawyers. The post got lots of discussion, and in fact I ended up doing a series of speeches about the topic at seminars sponsored by various state lawyer associations and at an AAJ national conference..

Eight more years in the trenches as a practicing lawyer have given rise to a few more thoughts on the subject, and therefore I have updated the post. Here is the 2013 version.

The key to making a decent living (and maintaining sanity) as a plaintiff’s lawyer is knowing when to turn a case down. To be sure, you have to a plan in place to get inquiries on new cases. And you have to have the ability to prepare and try the cases you accept. But it is also essential that you need do know when to say "thanks, but no thanks" to a case offered to you from a potential client or another lawyer.

June 21, 2013

Tennessee General Assembly Fixes One Small Problem With The Tort Reform Legislation

by The Law Offices of John Day, P.C.

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis" for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2), This was a disaster waiting to happen. Why?

Here is an example. Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident. She will never work again and she has a significant future medical expenses over her lifetime. Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy. There is also a dispute over the inflation rate and the discount rate.

May 28, 2013

Tennessee Law of Negligent Infliction of Emotional Distress

by The Law Offices of John Day, P.C.

Negligent infliction of emotional distress is a relatively new tort in Tennessee. True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims. I wrote an article on subject in an article for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress.

May 23, 2013

Major Changes to Tennessee Wrongful Death Law – Death of a Spouse

by The Law Offices of John Day, P.C.

Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.

However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.

The Tennessee General Assembly has weighed in on the controversy. First, Tenn. Code. Ann. Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent for a period of two (2) years. Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head.

May 18, 2013

Tennessee Medical Malpractice Lawsuits Against Governmental Entities and Their Employees and the Notice Statute

by The Law Offices of John Day, P.C.

Tennessee law has a one year statute of limitation in a medical malpractice (now called a health care liability) case. Formal legal notice must be given to health care providers who are going to be sued in the case and this notice must be given before the expiration of the statute of limitations. Notice must be given at least 60 days before suit is filed. If notice is given as required by law, the statute of limitations is extended for 120 days. All of this is spelled out in detail in T.C. A. Sec. 29-26-121..

Thus, if a patient is hurt as a result of a medical error on Day 1, and notice is given on Day 364, plaintiff cannot file suit until Day 425 (60 days after suit was filed) but must file before Day 485 (120 days after the statute of limitations expired), right?

Yes, unless the case is against a health care provider employed by a local government or against the local government itself. The Tennessee Supreme Court has released its opinion in Cunningham v. Williamson Cty. Hosp. District, No. M2011-00554-SC-S09-CV (Tenn. May 9, 2013) and has ruled that the notice statute (T.C.A. Sec. 29-2-121) does not extend the statute of limitations applicable to claims against governmental entities and its employees. Why? Because the Court has ruled that changes in statutes of general application that specifically conflict with the GTLA do not apply to claims against governmental entities unless the General Assembly specifically says they do.

April 27, 2013

Important Medicare Subrogation Decision From the 9th Circuit Court of Appeals

by The Law Offices of John Day, P.C.

The 9th Circuit Court of Appeals has ruled that a private Medicare Advantage Organization plan cannot sue a plan participant’s survivors for reimbursement of medical payments out of the proceeds of an automobile insurance policy.

The case is Parra v. PacificCare of Arizona, No. 11-16069 (9th Cir. April 19, 2013), Parra was struck by car and was seriously injured. His medical expenses were paid by Defendant, a Medicare Advantage Organization ("MAO"). Parra died from his injuries, and his survivors brought a claim under Arizona’s wrongful death law. The MAO also asserted a claim for monies it paid for medical expenses. GEICO, the tortfeasor’s insurer, issued a joint check to the parties for the full amount of the MAO’s claimed interest, to be held in trust pending the outcome of the dispute between the survivors and the MAO.

The survivors sued PacificCare, saying that it had no right to seek recovery of monies from the wrongful death settlement.