The Tennessee Supreme Court will hear oral arguments on May 11, 2011 in Holder v. Westgate Resorts, Ltd., E2009-01312-SC-R11-C (Tenn. Ct. App. 2010).
Here is the summary of the opinion prepared by the Court of Appeals:
Plaintiff sustained personal injuries resulting from a fall on defendant’s premises
On a weekly, if not daily, basis, plaintiff’s personal injury lawyers have to deal with subrogation interests. Many of those subrogation claims involve the law of ERISA.
This opinion out of the Illinois Court of Appeals addresses the issue of disputes over the amount of money to be re-paid to the holder of the subrogation interest.
Defendant had a personal injury claim. Plaintiff sought subrogation and claimed that it was due almost $63,000. Defendant claimed that some of the expenses sought did not arise from medical treatment caused in the incident giving rise to the personal injury claim. Plaintiff countered with answers to interrogatories in the personal injury claim, in which Plaintiff contended that back surgery (the subject of the disputed medical claim) was related to the accident). Defendant argued that her physicians did not causally link the back problems to the accident, and therefore Plaintiff’s subrogation interest in any future personal injury settlement or judgment proceeds should be reduced accordingly. Plaintiff countered that one physician said the link was possible, that it determined the subrogation amount, and that under ERISA the court should defer to its decision and order that the amount of the subrogation interest include amounts for the surgery.
Thomas Redmon gave the plaintiff herpes. He knew that he had the disease for over 25 years before he had sexual relations with the plaintiff. He knew that there was some risk in transmitting the disease even if he was lesion-free. He did not tell plaintiff that he had the disease before their first several sexual interactions, but later told her that he had the disease. He also told her that it was safe to have unprotected sex if he was lesion-free.
Plaintiff contacted herpes and sued Redmon. The jury awarded her $6.7 million.
The California Court of Appeals affirmed the liability aspect of the verdict but cut the compensatory damages award by over $2 million. (Note: the press reported that the award was affirmed. Here is one example of such an error.) The punitive damage award of $2.75 million was affirmed.
Lawyer A is hired to bring a personal injury case on behalf of an injured person. With the consent of the injured person, Lawyer A associates Lawyer B. The contract between A and B includes a fee split arrangement. Injured person consents to fee split and the contract. Injured person then fires Lawyer A. Lawyer B prosecutes case and resolves it. Lawyer A is not paid any portion of the fee. Lawyer A sues Lawyer B under a myriad of theories.
he California Court of Appeals, Third District, rules that Lawyer A has no claim against B. The personal injury client employed and fired Lawyer A and it was her responsibility to pay a fee if it was due under either a breach of contract theory or a quantum meruit theory. The Court also ruled that the litigation privilege barred Lawyer A’s fraud claims against Lawyer B.
Find the opinion in Olsen v. Harbison, C058943 (Cal. Ct. App. 3rd Dis. Dec. 28, 2010) here.
A plaintiff in a slip and fall case in New York was permitted to testify as an expert on pigeon droppings.
The plaintiff in Stewart v. New York City Tr. Auth. 2011 NY Slip Op 01593 (NY 1st App. Div. Mar. 3, 2011) slipped and fell on pigeon poop at a subway station. The opinion says this about pigeon poop:
There was nothing manifestly untrue or incredible about plaintiff’s testimony that he often observed pigeon droppings on the subway stairs that he used every day and that he was caused to slip because of the presence of pigeon droppings on the very same set of stairs. Indeed, the station cleaner similarly testified that he had "experience on a daily basis with pigeon [droppings] and having to clean it from these steps," and that he was taught to put sand over the pigeon droppings because they were slippery.
is an article by Larry Beinhart explaining how and why Corporate America seeks to limit access to our courts by pushing so-called "tort reform" legislation.
Here
A sample:
The California Supreme Court has ruled that a truck driver may be held liable for parking his vehicle along a freeway to have a snack where regulations permitted only emergency parking.
The entire opinion has a fascinating discussion of the law of duty, but the following gives you a flavor for the balance of the opinion:
If stopping 16 feet from the traffic lanes exempts a driver from the duty of care, does the same hold for parking six feet from the lane? Six inches? If we are to create immunity for a truck driver stopping for a few minutes to have a snack, should we also do so for one who decides to sleep for hours by the roadside rather than pay for a motel room? Would the categorical exemption Ralphs seeks still apply if a tractor-trailer driver parked an inch from the traffic lanes, on the outside of a curve, leaving the rig there all night without lights? To ask these questions is to see why a categorical exemption is not appropriate. The duty of reasonable care is the same under all these circumstances; what varies with the specific facts of the case is whether the defendant has breached that duty. That question, as discussed earlier, is generally one to be decided by the jury, not the court.
What happens when a personal injury plaintiff files a bankruptcy petition? What happens if that plaintiff fails to disclose in the bankruptcy petition that he has a personal injury claim that has not yet been filed? How does a bankruptcy court discharge affect the plaintiff’s rights to later file his personal injury claim?
The Tennessee Court of Appeals recently addressed these issues in the case of Reynolds v. Tognetti, No. W2010-00320-COA-R3-CV (Tenn. Ct. App. Mar.4, 2011). When the defendants learned that the now debt-discharged plaintiff was pursuing a tort claim for injuries received before he filed the bankruptcy petition, they filed a motion for summary judgment seeking dismissal of the claim on the theory of judicial estoppel.
Plaintiff responded to this motion by (1) petitioning the bankruptcy court to re-open the bankruptcy and (2) filing a motion to amend the complaint to add the bankruptcy trustee as a party plaintiff. The trustee then moved to intervene or be substituted as a party plaintiff.
A recent opinion from the Alabama Supreme Court reminds us that many things – even obscure things – can cause a reversal of jury verdict.
In Ford Motor Co. v. Duckett, No. 1090833, (Ala. 2/11/2011) a unanimous Alabama Supreme Court reversed a multi-million dollar verdict in favor of a plaintiff because the trial judge did not properly handle the jury selection process. The products liability trial was expected to last as many as four weeks, and the trial judge asked all potential jurors who were gathered in a jury assembly room to indicate whether they could serve during a three or four week trial. Those who indicated “yes” went through traditional voir dire. The defense objected to this course of action, saying that the judge was “asking for a jury of volunteers” in violation of Alabama law and that they were entitled to a randomly selected jury.
Despite the absence of any case law directly on point, the Alabama Supreme Court held this method of selecting jurors for participation in the ultimate jury selection process was inappropriate under Alabama law. The Court noted that while no one challenged the composition of the original jury pool, the trial judge committed reversible error when he reduced the size of the pool by asking who could serve for a trial expected to last three to four weeks.
Yesterday I shared data on auto negligence cases from Shannon Ragland’s Tennessee Jury Verdict Reporter Year in Review 2010. You can order your own copy of the publication here.
Here is some other data of interest:
There is 15 verdicts of $1,000,000 or more, increasing the total number of million dollar verdicts for the last six years to 84. The two million dollar verdicts in auto wreck cases last year involved drunk drivers. One such verdict was discussed in the previous post. I have been told, but do not know with 100% certainty, that the other $1 million verdict was against a man with very few assets and only $25,000 in liability coverage.
