Day on Torts

April 9, 2012

Evaluation of Expert Witnesses in Tennessee and the Sixth Circuit

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.

March 22, 2012

Sixth Circuit Court of Appeals Discusses the Law of Lost Earning Capacity

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

"Lost earning capacity is not a difficult concept to understand, but our friends in the defense bar sometimes are able to confuse judges and juries about what it means. The United States Court of Appeals for the Sixth Circuit confronted in issue recently in a case involving Ohio tort law, and got it right.

Andler received broken bones in her feet at an event in 2004 and brought a premises liability claim. Prior to her injury, Andler worked part-time at a childcare center and earned between $9,000 and $10,000 a year. According to Andler, her injuries forced her to switch jobs and, in the years following the injury, she worked full-time as a manicurist and pedicurist; she earned approximately $10,000 in 2006 and $25,000 in 2008.

At the first trial, Andler offered expert testimony of accountant Daniel Selby, who testified, using Bureau of Labor Statistics (“BLS”) figures, as to Andler’s lost earning capacity due to the injury. Selby testified that, but for her injury, Andler could have earned approximately $17,600 a year as a full-time childcare worker; post-injury, her annual earning capacity as a full-time manicurist and pedicurist was approximately the same. When factoring in the effects of her work disability, such as increased likelihood of missed work or longer-term exit from the workforce, Selby concluded that Andler’s damages for lost earning capacity totaled $232,346.

March 22, 2012

HR 5 – LImiting Patient Rights in Medical Malpractice Cases – Passes U.S. House

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

The Republican dominated House of Representatives has passed HR 5, a tort reform bill designed to make it more difficult for patients to pursue medical malpractice cases.

The bill passed 223-181. Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans. Four Republicans voted "present."

The legislation combines two AMA-supported bills: the “Medicare Decisions Accountability Act” (HR 452), and the “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act” (also HR 5). The legislation contains a wide range of AMA-supported medical liability reforms, including a $250,000 cap on noneconomic damages, punitive damage reforms, and more.

March 21, 2012

The Impact of The Passage of Time on the Ability to Prove Causation

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

A truck driver who negligently caused a car wreck on an interstate highway cannot be held responsible for an accident occurring four hours later in traffic backed-up because of the original crash.

In Blood v. VH-1 Music First, No. 09-399 (7th Cir. Feb. 9, 2012), the appellate court affirmed a grant of summary judgment in favor of the original at-fault truck driver arising from a claim brought by persons injured and killed in the later crash. The plaintiffs in the second crash did not sue the driver of the first crash. Rather, the defendants in the second case filed third-party complaints against the driver in the original crash. Only then did the plaintiffs in the second crash sue the driver in the first crash.

The case was dismissed because the trial court found, and the appellate court agreed, that there was no proximate cause as a matter of law. The 7th Circuit explained that there was no real dispute about what happened: the second wreck was 4 and 1/2 miles away and 4 hours after the first. In addition, the Blood vehicle slowed to a stop in traffic and the second defendants slammed into the rear of that car.

March 20, 2012

Will I Go To Jail For Lying on Interrogatory Answers?

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

I am in a lawsuit and had to answer interrogatories. I didn’t tell the truth about some things and the other side found out about it. Can I get sent to jail for not tellling the truth?

There is a risk of jail or a fine because interrogatories are answered under oath and lying under oath is perjury. However, I am unaware of any person actually having been jailed for not telling the truth in answers to interrogatories.

A more realistic risk is that the trial judge may sanction you (he or she would have the right to dismiss your case or, if you were sued, strike the answer in the case and enter judgment against you.) Lesser sanctions would include telling the jury what you did, awarding attorneys fees against you, and other penalties. Your mistake will also hurt your credibility with the judge and jury.