Day on Torts

May 23, 2011

Smoking Gun Memo Shows Up in Asbestos Trial

The Asbestos Law Journal has this great post on a huge asbestos verdict in Mississippi a short time ago. The blog notes that "part of why the jury did so may be because of a handwritten note that indicates one of the defendants engaged in a cost-benefit analysis that concluded it was OK to give people cancer as long as the profit exceeded the cost of the ensuing lawsuits."

Here is the a PDF of the hand-written document at issue. The operative language is about one-third of the way down the page.

May 23, 2011

The Scope of Expert Testimony in Tennessee

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

The Tennessee Bar Journal has published an article I wrote concerning the permissible scope of expert testimony. The article discusses the decision of the Tennessee Court of Appeals in Holder v. Westgate Resorts Ltd.. Here is the majority opinion and here is the concurring / dissenting opinion of Judge Susano.

This is an excerpt of the article, titled "That’s (Not) a Fact, Jack:"

The majority opinion in Holder has grave implications for the trial of cases involving experts. It has the potential for injustice to plaintiffs and defendants. Fortunately, the Tennessee Supreme Court accepted review of the case. In the view of this writer, the court should send a clear message that the proffered testimony in this case was properly excluded and that otherwise inadmissible facts, data and opinions should not normally find their way to the fact finder merely because an expert witness wants to testify about them.

May 19, 2011

Tennessee Legislative Update – 2011 – Bicycle Safety

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

The Tennessee General Assembly has passed new legislation designed to enhance the safety of bicycle riders. The legislation is Public Chapter 192 and will come into effect on July 1, 2011.

The new legislation arms those representing bicycle wreck victims with a basis for asserting negligence per se against defendant drivers.

May 17, 2011

ALI Adopts Restatement Provision on Liability of Those Who Hire Independent Contractors

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

On Monday, May 16, 2011 the American Law Institute adopted Chapter 10 of the Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm.

Chapter 10 addresses liability, both direct and vicarious, of those who employ an independent contractor. It replaces Chapter 15 of the Prosser / Wade Restatement Second of Torts.

The Reporter for this effort is Ellen Pryor of Southern Methodist University.

May 16, 2011

Tennessee Legislative Update – 2011

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

Among the bills passed by the Tennessee General Assembly is Public Chapter 130, a bill that dramatically changes the law applicable to the business of insurance.

The legislation repeals the ability of consumers to sue an insurance company under the Tennessee Consumer Protection Act or any other statutory provision other than the limited rights extended to consumers in the insurance section of the Code.

For reasons I cannot explain, I cannot provide a link to the legislation. You can find it on the Tennessee Secretary of State’s website.

May 13, 2011

Tort Reform Legislation Passes House and Senate

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

The tort reform package developed by a coalition of business interests and promoted by the Republican Party has passed the Tennessee House and Senate. The bill was aggressively promoted by the Governor’s Office and thus will be signed into law in the next few days.

The Legislation creates many changes to the law, but here are a few low points:

Changes to venue rules that will limit the places where corporations can be sued.
Expands the notion of medical malpractice cases to capture all claims against nursing homes.
Caps non-economic damages to $750,000 in most cases and $1,000,000 in rare cases.
Limits the bond that must be posted on appeal for losing defendants.
Eliminates the need to post a bond on punitive damages.
Limits the imposition of punitive damages.
Removes securities claims from the TCPA.
Removes the ability of consumers to bring TCPA claims for other than certain listed unfair and deceptive acts.
Offers increased protections to manufacturers of products

The legislation applies to causes of action that accrue after October 1, 2011. I will post a copy of the bill in its final form next week.

May 10, 2011

Tennessee Adopts New Rules – Part 2

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

The Tennessee General Assembly has adopted rule changes proposed by the Tennessee Supreme Court. This is one of multiple posts discussing the new rules of most interest to tort lawyers.

Rule 26 of the Tennessee Rules of Civil Procedure has been changed to increase the disclosures required for expert witnesses. The new rule requires that

the party shall disclose the witness’s qualifications ( including a list of all publications authored in the previous ten years), a list of all other cases in which. during the previous four vears, the witness testified as an expert. and a statement of the compensation to be paid for the study and testimony in the case.

May 9, 2011

Tennessee Adopts New Rules – Part 1

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

The Tennessee General Assembly has adopted rule changes proposed by the Tennessee Supreme Court. This is one of multiple posts discussing the new rules of most interest to tort lawyers.

Rule 611 of the Tennessee Rules of Evidence has been changed to permit leading questions to be asked of a witness on direct examination if the witness is "identified with an adverse party." Previously, the rule permitted leading questions on direct of adverse parties or hostile witnesses.

Here is a copy of the new rule. It goes into effect July 1, 2011.

May 5, 2011

SVMIC Financial Results – 2010

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

State Volunteer Mutual Insurance Company (SVMIC) had another outstanding year in 2010. Here are some highlights from its "2010 Report to Policyholders:"

Surplus (think: net worth) increased almost 20% to $444 million, up from $364 million in 2009.
Earned premiums dropped to $218 million, due to a significant rate reduction (average: 23%) and a decrease in the number of policyholders secondary to increased competition in the marketplace.
Despite a decrease in earned premiums of over 15% (totaling over $43M), post-tax net income declined only a little over $4M to $67,668,000.
Profits as a percentage of revenue were extraordinarily high, at over 25%.
The unpaid loss and loss adjustment expense reserve actually dropped for 2010, a very unusual result.
On February 22, 2011, the company declared another $20M dividend to its policyholders. This will decrease rates by an average of about 9%. This follows a dividend of $20M in 2010.

SVMIC’s 2011-12 rate filing will be available shortly and, I predict, will show further rate declines.

Of course, the tort reform measures virtually certain to be enacted into law in the next couple weeks will further enhance this company’s profits.

May 2, 2011

Givers, Takers and the AAJ Leaders Forum Program

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

Some plaintiff’s lawyers are "givers" and others are "takers." There are a fair number of givers, lawyers who step up to the plate time and time again to help advance the cause of civil justice in this state and nation. Some give knowledge, some give time, some give money, and some give all of the above – and each of us is indebted to every single one of them.

On the other hand there are "takers." These lawyers spend thousands of dollars every month advertising for clients but refuse to give money to support legislative efforts designed to support the rights of those clients. They are lawyers who make a good living representing plaintiffs but refuse to give time or money to support the state or national trial lawyers association. They are lawyers who constantly talk about their big settlements and their big cases but somehow never have the ability to write a check to help the cause. They are lawyers who ride around in $60,000 cars but refuse to give a political contribution to a pro-civil justice candidate. They are lawyers who seek the help of the association or its members when they are need, but turn away when asked to help. These men and women thrive off the efforts of others, giving nothing, taking whatever they can, and smiling all the way to the bank.

If you are a "giver," please keep giving. You already know that a rising tide lifts all boats and that our willingness to share advances the cause that we believe in with our heart and soul. If you are fortunate enough to have earned a good income as a result of your hard work as a plaintiff’s lawyer, you should give serious consideration to support of AAJ through its Leaders Forum program. Your money will be used to help inform the public about the critical role that trial attorneys play in holding wrongdoers accountable for their actions and thus assist in reframing the debate about the civil justice system. The contribution is significant, a minimum of $1000 per month, but over 400 of the best lawyers and firms in the country step up to the plate every month and give extraordinary support to AAJ. You can sign up here.