Day on Torts

May 17, 2012

Attorney Sued for Failing To Protect Subrogation Interest; Ordered to Re-Pay Trust Account Pending Outcome of Case

A personal injury attorney may be sued in federal court for the failure to pay a subrogation interest subject to ERISA and required to put money back into his trust account pending the outcome of the subrogation fight.

So holds the United States District Court for the Northern District of Illinois. In Central States v. Lewis, No. 11 CV 4645 (N.D. Il. May 15, 2012a personal injury attorney settled a case for a client and disbursed funds to himself and the client without paying the subrogation interest claimed by Central States. Central States sought a preliminary injunction against the attorney and client to restore the money to the attorney’s trust account so that the plan could proceed with an action against the trust account. The court agreed, and stated that even the attorney’s fee must be restored to the account, even if the attorney has already commingled the monies with other funds.

The Lewis court cited with approval the Longaberger opinion from the Sixth Circuit Court of Appeals, a case familar to all tort practioners.

May 11, 2012

Lawsuits Against John Travolta Are Foolish

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

John Travolta, one of the better known actors in the world, has been hit with two lawsuits alleging that he engaged in sexual misconduct.

The allegations come from two masseurs who, so far, have refused to reveal their names. In one case, the masseuse claims that Travolta solicited sexual conduct with him on January 16, 2012 at the Beverly Hills Hilton. Travolta allegedly began rubbing the masseuse’s leg, touched his scrotum and the shaft of his penis. Travolta adamantly denies the accusations, and has offered proof that he was in New York at the time the alleged incident occurred. Now, the accuser says he got the date wrong, and that the real date was some time earlier.

Here is a copy of the complaint in case. The theories of liability are assault, battery, and intentional infliction of emotional distress.

May 7, 2012

2012 Legislation of Interest to Tennessee Personal Injury Lawyers

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

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be. The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants.

What follows is a list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State’s website as of Friday, May 4, 2012. I know that there are other bills that have been passed but have not yet found their way to the Secretary of State’s site. I will post on those public acts when they become available.

Public Chapter 506 requires that institutions of higher learning do background checks on those who have access to student rooms at those institutions. (This was passed in the last legislative session but I did not include it on last year’s list.)
Public Chapter 518 impacts the defense of "unclean hands."
Public Chapter 539 exempts ambulances for certain requirements imposed on certain medical transportation companies.
Public Chapter 552 creates a cause of action for those injured or otherwise harmed by mislabeled sorghum molasses. Really.
Public Chapter 568 requires that all recreational vehicles available for rental or lease have functioning carbon monoxide detectors and provides that the failure to do so gives rise to civil liability, including payment of attorney’s fees.
Public Chapter 613 creates a cause of action for victims of human trafficking offenses.
Public Chapter 649 allows nursing homes to employ physicians.
Public Chapter 678 provides that physician’s assistants may not be subpoenaed to trial but may be required to give a deposition.
Public Chapter 798 appears to be a house-keeping Act that primarily deletes reference to "medical malpractice" and substitutes the language "health care liability action."
Public Chapter 844 enacts "Jaclyn’s Law," which grants civil immunity to first responders in certain circumstances involving entry into homes.

Public Chapter 862 limits the liability of whitewater rafting companies.

May 4, 2012

Tennessee Comparative Fault Law is 20 Years Old Today!6

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

Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee. I agree. For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court’s fault.

May 2, 2012

Article on T.C.A. Section 20-1-119 and the Mills Decision

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

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.

April 29, 2012

Pit Bulls Declared Inherently Dangerous in Maryland

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

Tennessee personal injury lawyers will read with interest this opinion from the Maryland Court of Appeals that declares that pit bulls are inherently dangerous and thus are not subject to the "first-bite" rule.

In Tracey v. Solesky, No. 53 (MD. Ct. of App. Apr. 26, 2012) the dog bite arose from "an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford possessed the aggressive and vicious characteristics of both Trouble and Rampage."

The Court examined the history of pit bulls and cited to various sources to document the dangerous propensities of these animals. After a careful, thorough examination of the law and public policy, the Court concluded as follows:

April 27, 2012

Medical Malpractice Paid Claims Continue to Drop

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

The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319. In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in Appendix D, Table 1.)

April 26, 2012

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

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

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.