Day on Torts

October 1, 2012

8th Circuit: Law Firm Cannot Be Sued For Failure to Hold Money to Satisfy ERISA Subrogation Interest

The United States Court of Appeals for the Eighth Circuit has ruled that a law firm that was admittedly aware of an ERISA subrogation interest and disbursed settlement funds from a third-party claim to its client could not be held personally liable for failure to pay the funds to an ERISA plan.

In Treasurer, Trustees of Drury Industries, Inc. Health Care Plan v. Goding , No. 11-2885 (8th Cir. Sept. 7, 2012), Goding was hurt in a slip and fall accident. He received medical insurance benefits from an employer-sponsored health insurance plan. He also brought a third-party claim and settled the case. Goding’s attorneys, Casey and DeVoti, P.C. ("Casey"), were aware of the subrogation interest but distributed all of the proceeds of the settlement (after deduction for attorney’s fees and expenses) to Goding. The Plan pursued collection efforts against Goding, but he declared bankruptcy and the obligation to the Plan was discharged. The Plan then pursued a recovery against Casey, asserting multiple theories of recovery.

The trial judge and appellate court rejected all theories. The ERISA claims were rejected because the Plan had the right to seek equitable remedies only and, since Casey no longer had the money, no equitable claim could be asserted against it. The Court noted that Casey never agreed to protect the subrogation interest – it only acknowledged the existence of it, The state law claims were rejected because they were preempted by ERISA.

September 29, 2012

Landlord’s Common Law Duty to Alleviate Known Dangers Includes Dangers Posed By Vicious Dogs

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

The Connecticut Supreme Court has ruled that a landlord may be held liable for injuries caused by vicious dogs owned by its tenant.

In Giacalone v. Housing Authority of the Town of Wallingford, No. SC 18669 (Conn. Sept. 18, 2102), plaintiff tenant sued defendant landlord for injuries sustained after plaintiff was attacked by a dog owned by another tenant of defendant. Defendant allegedly knew of the dog’s dangerous propensities, but did not have direct care of, or control over, the dog. Plaintiff brought the claim against landlord on a common law premises liability theory.

Under Connecticut common law, knowledge of a domestic animal’s vicious propensity imposes a duty on the owner to restrain that animal, and failure to do so is treated as negligence, triggering liability for damage caused by the animal. The rule has been changed by recent statutes, but those statutes do not address the liability of landlords.

September 28, 2012

Best Practices for Defense of Corporate Depositions

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

The Spring 2012 edition of FDCC Quarterly has an article titled "Best Practice for Defense of Corporate Depositions." The article is written by a Senior General Attorney for BNSF Railway Company, Mr. Thomas R. Jayne.

Those of us who are usually take depositions of corporate representatives will find the thought process of corporate defense counsel interesting and helpful.

September 27, 2012

Use of Functional Magnetic Resonance Imaging To Prove that A Witness is Not Lyiing Not Admitted Into Evidence

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

The 6th Circuit Court of Appeals has ruled that functional magnetic resonance imaging cannot be used in a criminal case to prove that the defendant’s denials of wrongdoing were true.

Defendant wanted to introduce evidence of the fMRI to prove that he was telling the truth in his criminal trial and that did not intentionally violate the law. In an issue of first impression, the court of appeals affirmed the exclusion of the evidence. The court said

that the district court did not abuse its discretion in excluding the fMRI evidence pursuant to Rule 403 in light of (1) the questions surrounding the reliability of fMRI lie detection tests in general and as performed on [defendant] Dr. Semrau, (2) the failure to give the prosecution an opportunity to participate in the testing, and (3) the test result’s inability to corroborate Dr. Semrau’s answers as to the particular offenses for which he was charged.

September 21, 2012

The “Certificate of Good Faith” Requirement in Tennessee Medical Malpractice (Health Care Liability) Lawsuits

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

Almost four years ago Tennessee adopted a requirement lawyers filing medical malpractice (now called health care liability) lawsuits must file a "certificate of good faith." Under the current version of the statute the certificate must be filed with the complaint.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-122. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the certificate of good faith requirement. One of the cases is pending before the Tennessee Supreme Court and an opinion is expected in the next few weeks.

September 20, 2012

Case Law on Pre-Suit Notice Requirement in Tennessee Health Care Liability (Medical Malpractice) Cases

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

Almost four years ago Tennessee adopted a requirement that health care provides were entitled to receive advance notice of the filing of Tennessee medical malpractice (now call "health care liability) lawsuits. Under the current version of the statute, notice must be given in the manner proscribed by statute before the expiration of the statute of limitations. Exceptions are granted only for extraordinary cause. Giving appropriate notice extends the statute of limitations and statute of repose by 120 days.

The Tennessee pre-suit notice statute can be found at T.C.A. Section 29-26-119. I wrote an article about the most recent version of the statute for the Tennessee Bar Journal; the article is titled "Med Mal Makeover: The New Medical Malpractice Notice and Certificate of Good Faith Statute."

I have assembled a list of the cases that discussed the pre-suit notice requirement. Here are the two cases currently pending before the Tennessee Supreme Court:

September 17, 2012

Tennessee Lawyers Beware! Legal Research Issue

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

The Lexis website that contains the Tennessee Code that is available through the Tennessee Administrative Office of the Courts is not updated with 2012 legislative changes. This despite the fact that many of those changes went into effect July 1, 2012, or even earlier.

It appears that Westlaw has updated the Code.

Thus, lawyers are advised not to count on the Lexis website available through the AOC at this time.

September 6, 2012

Distribution Of Net Wrongful Death Proceeds in Tennessee

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

As regular readers know, the Tennessee Bar Association has published a regular column in the Tennessee Bar Journal called "Day on Torts" for many years. I enjoy writing for these articles and am thankful for the many calls, letters and emails I have received over the years from my fellow lawyers thanking for me writing them.

The September 2012 edition of the publication includes my latest column, titled "Distribution of Net Proceeds in Tennessee Wrongful Death Cases." The article offers an analysis of Tennessee law on how statutory beneficiaries divide the net proceeds of wrongful death settlements and judgments.

I wrote this column after receipt of many calls from lawyers asking me questions on the subject. I hope that this work helps other lawyers serve their clients in Tennessee wrongful death cases.

August 29, 2012

Lawyers Without Legal Malpractice Insurance

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

I am fortunate to receive many calls on many types of cases, some of which fall outside of my normal practice area. i decided I would seek out a lawyer to whom I could associate on a particular type of case – this lawyer enjoyed a good reputation on cases of this type. I called him and had a general discussion about the type of calls I was getting and inquired whether he was interested in receiving some referrals.

He said he was, and we had a discussion about how we could work together to assist future clients. I had a good feeling about the potential of working together.

Then, I asked him to confirm that he carried legal malpractice insurance. He said he did not, I told him I could not sleep at night if I did not have legal malpractice insurance for our firm. He said that if he got sued and put in a position of probable financial loss he would file bankruptcy and avoid the loss.

August 27, 2012

Federal Courts Issue Revised Jury Instructions on Social Media

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

The Federal Evidence Review Blog has been kind enough to let us know that the federal Judicial Conference Committee on Court Administration and Case Management ("CACM") has issued new proposed jury instructions on the use of social media by jurors.

"The overwhelming majority of judges take steps to warn jurors not to use social media during trial, but the judges surveyed said additional steps should be taken," said Judge Julie A. Robinson, CACM Committee chair. "The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate. Jurors should be told why refraining from use of social media promotes a fair trial. Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time. Those recommendations are now part of the guidelines."

Here are the proposed instructions: