Day on Torts

April 18, 2012

Tennessee Construction Statute of Repose Not Tolled For Minors

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.

April 13, 2012

Argument of Validity of Caps in Medical Malpractice Cases in Florida

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

Oral arguments were held a couple months ago on the validity of caps on damages under tort reform measures in medical malpractice cases in Florida. The arguments on now available on the Web.

April 12, 2012

Tennessee Senate Rejects Changes to Law That Would Have Essentially Eliminated Punitive Damage Recoveries

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

The Senate Judiciary Committee has just voted to reject a bill that would have allowed corporations and other employers to escape responsibility for punitive damages based on the reckless conduct of their employees.

SB2637 by Republican Senator Brian Kelsey (House version by Republican Rep. Vance Dennis), Tennessee would have held employers responsible for punitive damages only if (a) the reckless act was committed by someone employed in a management capacity; (b) the employer recklessly hired, retained, supervised or trained the reckless employee; or (c) the employer authorized, ratified or approved the reckless act or omission with knowledge or conscious disregard for the loss or injury.

The Bill defined "someone employed in a management capacity" as a management-level employee with the stature and authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer’s business and where the alleged act or omission warranting punitive damages by such management-level employee was directly within the scope of such authority.

April 9, 2012

Evaluation of Expert Witnesses in Tennessee and the Sixth Circuit

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

The 6th Circuit Court of Appeals has sent a clear signal on what the federal courts in Tennessee and the other states that comprise the 6th Circuit should look at when reviewing a Daubert challenge to expert testimony.

In Newell Rubbermaid, Inc. v. The Raymond Corporation, No. 10-3912 (6th Cir. April 3, 2012), the plaintiff corporation filed a subrogation against defendant seeking recovery of monies plaintiff paid to plaintiff’s employee who was injured while using a forklift manufactured by defendant.

The Plaintiff’s expert was Benjamin T. Railsback. The Court explained that "Railsback, a forensic engineer with no experience in driving a Raymond forklift and only limited experience in driving forklifts from other manufacturers, opined that the Dockstocker was defectively designed because it did not have a rear guard door to prevent the operator’s feet from accidentally leaving the operator compartment. Raymond moved to exclude Railsback’s testimony."

March 29, 2012

Medical Malpractice Case Filings Still Below Pre-Tort Reform Levels

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

Medical malpractice case filings were up last year but are still below the filings for the year when the first tort reform hit medical malpractice cases.

October 1, 2008 was the date that pre-suit notice and certificates of good faith became required. In the year before the law change, 646 medical malpractice cases were filed in the entire state. Some 140 of those cases were filed in the month before the law changed – ordinarily only about 46 were filed per month.

Predictably, filings were down substantially in the year ending September 30, 2009 – only 264 cases were filed. The next year filings were up to 314, and the year ended September 30, 2011 there were 378 medical malpractice cases filed.

March 28, 2012

What Is A Life Worth?

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

The Tennessee General Assembly has now placed arbitrary caps on damages in personal injury and wrongful death cases. And the House of Representatives just passed HR 5, which placed a caps on damages in medical malpractice cases.

But how does the federal government value life when weighing regulatory burden? The New York Times provides us these figures:

EPA – $9.1 million

March 26, 2012

Taming “Rambo”

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

Don Maciejewski has published an article entitled "Dealing With Difficult Opposing Counsel – How to Tame "Rambo’" in the January / February 2012 edition of Litigation Commentary & Review.

Don includes 13 helpful hints on how to deal with jerks. As he correctly notes, "Rambo is probably well-skilled in lying and cheating and does not play by the rules."

There are lots of good suggestions in this article. Here is a sample:

March 26, 2012

Expert Witness Qualifications in Tennessee Medical Malpractice Case

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

The Sixth Circuit Court of Appeals has reversed a district court’s finding that an expert witness was not qualified to testify on behalf of a plaintiff in a health care liability action, relying on Shipley v. Williams, 350 S.W.3d 527 (2011).

In Bock v. University of Tennessee Medical Group, Inc., No. 10-5534 (6th Cir. March 26, 2012), the court ruled that Shipley required a remand but also made it very clear that merely determining a witness to be competent to give expert testimony did not end the inquiry. After competency is determined, case law and evidence rules in federal court still require application of the FRE 702 as interpreted by Daubert. The record was such that the court could not make the determination of these issues and thus a remand was appropriate.

The case includes a helpful discussion of the interaction between the Erie rule and the Federal Rules of Evidence and how the 6th Circuit has addressed the issue. Surprisingly, the United States Supreme Court has never directly addressed the issue.

March 23, 2012

Who Has The Right To Bring A Wrongful Death Claim Arising From a Truck Accident in Tennessee?

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

Generally speaking, these are the rules for who may file a wrongful death lawsuit inTennessee:

A lawsuit for the death of a husband can be filed by his wife, his executor or the administrator of his estate.
A lawsuit for the death of a wife can be filed by her husband, her executor, or the administrator of her estate.
If a person is single at the time of his or her death, the lawsuit can be maintained by his or her adult children or, if there are no adult children, by his or her parents. The lawsuit can also be filed by an executor or administrator.
If a person is a single minor at the time of death, the lawsuit can be maintained by his or her parents. If the parents are divorced, special rules apply. The lawsuit can also be filed by an administrator.
If the decedent did not leave a spouse or child and was predeceased by his or her parents, the law permits a sibling to file suit. The lawsuit can also be filed by an executor or administrator.
There are exceptions to these general rules. An experienced wrongful death lawyer can explain whether an exception is applicable if he or she is advised of the nature of the family situation.

It is rarely necessary to open an estate in Tennessee for the sole purpose of filing a wrongful death lawsuit. Thus, we rarely recommend that an estate be opened for the sole purpose of filing a lawsuit.