Day on Torts

April 26, 2012

Tennessee Court Waives Compliance With “Contiguous State” Rule for Expert Witness in Medical Malpractice Case

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.

Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”

The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care. The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.

April 26, 2012

“1-800-Ask-Gary” Lawyer Referral Network

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

"1-800-Ask-Gary" is a medical and legal referral service in Florida founded by Sarasota chiropractor Gary Kompothecras. If you have been to Central Florida you have seen their billboards, television ads and radio ads. Television ad costs exceed $12M per year.

Business must be good – last June Kompothecras paid a little more than $1 million for a three-year deal to put his service’s name on the amphitheater in Tampa. And he built a home of almost 30,000 square feet.

However, 1-800-Ask-Gary has created more than a little controversy. The referral business sends people to some 40 clinics operated by Kompothecras. Lawyers pay to join the referral network and get cases from the referral service.

April 25, 2012

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant’s Standard of Care Under Locality Rule

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

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given. Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community. This rule is codified in Tenn. Code Ann. § 29-26-115(a).

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012), the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

April 24, 2012

ALEC Exposed

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

The Pop Tort has done a nice job collecting information about Americans Legislative Exchange Council (ALEC), the corporate, right-wing group that sponsors a terrible array of legislation that has found its way to the Tennessee General Assembly.

Read and learn about the dirty underside of our poliltical process.

April 23, 2012

Judgments Arising From Intentional Torts Are Not Dischargeable In Bankruptcy

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

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife. Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes. The toes were amputated secondary to frostbite – the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium. Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

April 23, 2012

Is There a Limit on Damages Recoverable in Tennessee Personal Injury and Wrongful Death Cases?

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

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases. The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited. However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
the injured person had extensive three degree burns;
the injured person had two hands, two feet or one of each amputed in the wreck; or
in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

April 21, 2012

Jury Instruction Social Networking

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

Social networking by jurors can result in a new trial, creating increased expense for the parties.

The American College of Trial Lawyer has issued a brief report on this issue, and has proposed several instructions to prospective and empaneled jurors.

For example, ACTL recommends that this language be included on summonses to prospective jurors:

April 20, 2012

Punitive Damages in Automobile Accidents Involving Reckless Driving in Tennessee

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

Tennessee law permits the recovery of punitive damages when a defendant has engaged in reckless conduct. Because the standard for criminally negligent homicide mirrors the standard for recklessness necessary to recover punitive damages, the Tennessee Court of Criminal Appeals’ affirmation of the guilty verdict against a criminal defendant in a recent case could be pertinent to a punitive damages claim in a personal injury or wrongful death case.

In State of Tennessee v. Christopher Vigil, No. E2011-00259-CCAR3- CD (Tenn. Crim. App. February 9, 2012), the Court summarized the evidence supporting the verdict:

Leading up to the incident, the proof showed that Appellant and the victim had a rather torrid relationship. The victim was staying with a friend because she had been arguing with Appellant. The two were seen arguing on the day of the offense and at least one witness saw Appellant swipe his open hand toward the victim, causing

April 18, 2012

Tennessee Construction Statute of Repose Not Tolled For Minors

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

The Western Section of the Tennessee Court of Appeals has held that the construction statute of repose is not tolled for minors. By five years after a home or building is substantially completed, all bets are off. Even if the roof collapses on toddler in a crib, the contractors, architects, etc. are immune from suit.

Plaintiffs sued for injuries to a minor when a sink shattered. The trial court granted Defendants, the general contractor who constructed the building and the plumbing subcontractor who installed the sink, summary judgment based on the statute of repose for improvements to real

property. A statute of repose grants immunity to its beneficiaries because of the mere passage of time from some event. Practically speaking, it means that a person can lose his or her right to receive compensation for negligent acts or events before he or she is even injured,

April 16, 2012

Will A Special Needs Trust Trump An ERISA Subrogation Interest?

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

The Court of Appeals for the Fifth Circuit has ruled that the assets held in a special needs trust created out of the proceeds of a personal injury settlement are not available to satisfy an ERISA subrogation interest.

The Court held that the injured plaintiff never had possession or control over the money. The Court also determined that the trust and trustee could not be sued because the only asset in the trust was the right to future periodic payments in an annuity held by another.

The case is ACS Recovery Services, Inc. v. Griffin, No. 11-20266 (5th Cir. April 2, 2012). Footnote 4 of the opinion distinguishes a decision from the 8th Circuit involving a special needs trust.