Day on Torts

October 24, 2011

Discovery of Confidential Settlement Agreements

The Fourth District Court of Appeals for Florida has ruled that a non-settling defendant cannot obtain a court order forcing disclosure of confidential settlements between the plaintiff and settling defendants.

Plaintiffs were involved in an auto accident that was allegedly caused by tire failure. They sued the car manufacturer, the tire manufacturer, the car dealer, and Wal-Mart (the tire dealer and installer). Three of the defendants entered separate confidential settlement agreements after a mediation. Wal-Mart did not settle and sought discovery of the confidential settlement agreements. The trial court denied the request, saying that given the fact that joint and several liability had been abolished in Florida the settlement amounts were not relevant.

The Court of Appeals affirmed, saying

October 19, 2011

Do You Need An Appellate Lawyer At Trial?

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

I read a tweet the other day suggesting that a lawyer should have had an appellate lawyer present at trial. I cant remember who wrote the tweet but, if I had to guess, it was an appellate lawyer.

I guess an appellate lawyer will do you some good at trial – if you don’t know the law of preserving issues for appeal. Then again, if you don’t know that law of preserving issues for appeal, you lack knowledge of an important part of trying a case.

The law of preserving issues for appeal is not that complicated. It varies from jurisdiction to jurisdiction, I suppose, but in Tennessee it is pretty easy. For example, on evidence issues, you must make a timely, specific objection on the evidence point and are best served by stating the grounds for your objection. You must insist upon a ruling to the objection. If a judge prohibits you from introducing evidence, you must make an offer of proof out of the presence of the jury. All of this must be on the record.

October 19, 2011

New York Court of Appeals Rules That Bus Seat Belt Claims Were Not Preempted

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

New York’s highest court has ruled that the claim of bus passengers injured in a single-vehicle bus wreck which sought to hold the bus manufacturer liable for the failure to install passenger seatbelts on the bus were not preempted by federal regulations promulgated by the National Highway Traffic Safety Administration (NHTSA).

In Doomes v. Best Transit Corp., No. 170 (N.Y.Ct. App. Oct. 18, 2011), several bus passengers were injured after a dozing bus driver caused a single-vehicle bus crash. The Doomes plaintiffs and several other passengers sued several defendants and reached settlements with some of them. The claim against the bus manufacturer Warrick was not settled.

The jury found the bus manufacturer partially liable for the injuries suffered by the plaintiffs due to lack of seat belts. On appeal, Warrick asserted several points, including an argument that the jury was improperly allowed to consider that the bus was defective or that it was negligent due to a lack of seatbelts because FMVSS 208 (49 CFR 571.208), which did not require the installation of passenger seatbelts, preempted any claims of liability for failure to install such seatbelts.

October 17, 2011

Own Cows, Oxen or Buffalo? Tennessee Says You Get Special Legal Protection

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

Fortunately, things are so good in Tennessee that the General Assembly has seen fit to take time to limit the responsibility of bovine owners. For you city folk, cows, buffaloes and oxen are known as bovines.

The new law, codified at T.C.A.Sec. 44-21-101 et seq, provides that "no person shall make any claim against, maintain an action against, or recover from a bovine owner for injury, loss, damage, or death of the person resulting from the inherent risks of bovine activities" unless the bovine owner:

(1) Fails to post and maintain warning signs pursuant to § 44-21- 104(a);

October 14, 2011

Lawyers’ Fight Over Fen-Phen Fees Near End

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

Two lawyers who have been involved in an arbitration and federal court battle over fees from Fen-Phen cases appear to be at the end of the litigation road.

The Tenth Circuit Court of Appeals recently upheld an arbitration award of over $8 million dollars, finding that one lawyer breached a written agreement to refer Fen-Phen cases to the other. The referring lawyer kept some cases for himself and referred some cases to another lawyer.

The decision in Abbott v. Law Office of Patrick J. Mulligan, No. 10-4113 (10th Cir. Sept. 21, 2011), has little to offer us from a legal standpoint except to remind us how difficult it is to overturn an arbitration award on appeal.

October 13, 2011

Twelve Steps To Avoid Summary Judgment on a Fact Issue

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

Tennessee summary judgment law changed on July 1, 2011 to allow the use of "put up or shut up" motions. (The law only applies to cases filed on or after July 1.) This change will increase the use of summary judgment motions in Tennessee and will probably result in an effort by defendants to file those motions earlier in the case.

Although there will be a constitutional challenge to this legislation, the constitutional issue will not reach the Tennessee Supreme Court for several years. In the meantime, lawyers opposing motions for summary judgment must work hard to marshal the facts necessary to create a genuine issue of material fact (if one can be legitimately created)..

TRCP 56.07 gives a lawyer opposing a motion for summary judgment the opportunity to ask for more time to complete discovery before a summary judgment hearing. Here are the twelve steps you should follow to (a) maximize your chances of putting your case in the posture of not needing to file a Rule 56.07 motion or (b) if a Rule 56.07 motion must be filed, increasing the likelihood that the motion will be granted.

October 12, 2011

Brief Seeking Recovery of Medical Expenses Charges Under Tennessee’s Medical Malpractice Law

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

In medical negligence cases in Tennessee there is often a dispute about whether the plaintiff can recover the amount of the medical charges or the amount actually paid by the private insurer or governmental entity like Medicare. This is a recent brief on the subject prepared by Brandon Bass, a fine lawyer who works with our firm.

It is hard to believe that this issue has not yet been addressed by our supreme court.

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October 11, 2011

The Common Fund Doctrine and Med Pay Claims

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

The Alabama Court of Civil Appeals has ruled that the common fund doctrine applies to the determination of the payment of attorneys’ fees when monies for payments made under medical payments coverage are collected in a personal injury case.

In Mitchell v. State Farm, No 2100184 (Ala. Civ. App. 10/7/11), Mitchell’s attorney thought that State Farm, which paid monies for some of Mitchell’s medical bills, should have its subrogation interest reduced by the amount Mitchell paid the lawyer to recover the money for the benefit of State Farm. The attorney for the plaintiff relied on the common fund doctrine to assert the claim against State Farm.

The Court of Civil Appeals held that the common fund doctrine applied. It then rejected State Farm’s argument that its policy voided any obligation to pay an attorney’s fee for the recovery of the med pay coverage for its benefit. Finally, and perhaps most importantly, the Court rejected the argument that the common fund doctrine was voided by the "active participation" of its lawyer. The Court noted that although State Farm said it didn’t need the plaintiff’s lawyer to collect its money for it, State Farm did nothing to collect the subrogation interest until after the plaintiff’s attorney negotiated the settlement.

October 7, 2011

Tennessee’s New Dog Bite Law Protects Motorcyclists, Too.

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

The old "every dog gets one free bite" rule was severely limited as a result of legislation enacted by the Tennessee General Assembly several years ago. In fact, the new law works to protect motorcyclists and bicyclists, too. Here are the new rules:

44-8-413. Civil liability for injury caused by dogs.

(a) (1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another.

October 5, 2011

What Is Going Wrong With Patient Safety in Health Care?

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

The Doctor’s Company sells medical malpractice insurance to doctors. In 2010, it conducted 525 patient safety site surveys. The surveys were conducted across a range of practice environments around the country—from small office practices to large integrated delivery systems, hospitals, and outpatient facilities, such as surgery centers.

The survey found that in the 15 categories it surveyed, medical record documentation was the category with the most frequent patient safety/risk management issues. A total of 266 surveys—more than half of the 525 site surveys—had at least one issue related to this category. Top findings within this category included the failure to document allergy status in the same location in each record and the lack of a problem list or a list of current medications.

The research also disclosed that two combined categories—lab tests/referrals and scheduling/follow-up—came a close second with issues in 234 of the surveys. Although the categories are individually ranked fourth and fifth,searchers determined that the they are so closely related that a finding in one typically leads to a finding in the other.