Day on Torts

July 25, 2011

Twombly and Iqbal Do Not Apply in Tennessee State Courts

The Tennessee Supreme Court has ruled that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) do not apply to cases filed in Tennessee state courts. The extremely well-written opinion marshals the arguments against the application of the federal standard in state court proceedings and will be of benefit to lawyers around the nation who attempt to keep the federal standard out of state courts.

In Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV (Tenn. July 21, 2011), plaintiff filed a retaliatory discharge case against a Nashville not-for -profit organization. Defendant filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Habitat and amici curiae Tennessee Defense Lawyers Association and The Center for Individual Freedom asked the court to adopt the Twombly/Iqbal standard, which “retired” the notice pleading regime recognized in Conley v. Gibson, 355 U.S. 41 (1957), and followed for fifty years, in favor of a new “plausibility” standard.

Plaintiff argued that Tennessee should preserve its historic standard, which provides that a Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). Plaintiff asked the Court to re-affirm Tennessee law which provided that "a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested . . . by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004).

July 19, 2011

Are There More Errors in Hospitals in July?

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

Are you more likely to get hurt in the hospital in July? This article from the New York Times says "yes," if you are in a teaching hospital.

The Times article references to a paper published earlier this month in Annals of Internal Medicine,. The paper examines previous studies of the "July effect," and while the analysis found inconsistencies among nearly 40 studies examined, the data produced by the largest and best-designed ones indicated that patient death rates in teaching hospitals increase by 8 percent in July. Those studies also reported longer hospital stays, more drawn-out procedures and higher hospital charges in July, when 20 to 30 percent of the more experienced doctors-in-training leave and a class of newly minted doctors starts working at teaching hospitals.

Those of us who do medical negligence work know that this article makes sense. The massive shift of medical students and residents in our teaching hospitals every July 1 is bound to lead to errors.

July 18, 2011

Hot Coffee – The Movie

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

Some of you have seen Hot Coffee, the documentary that reveals how corporate interests manipulated the media about the McDonald’s coffee case and the other extra-ordinary steps corporate America is taking to take control of the civil justice system.

If you have not seen the movie, I encourage you to watch it. Quite frankly, it made me more sad than angry. I have spent over 25 years fighting corporate interests in Tennessee’s legislature and have been angry about what I have observed on a multitude of occasions. Thus, the sadness arose because all of the hard work by lots and lots of good people has done little to stem the tide of corporate power.

Money is the mother’s milk of politics, they say, and corporate interests provide money – lots of money. I believe that things are going to get worse. On the federal level, corporate contributions will now be permitted in federal elections. The Republican-controlled General Assembly just agreed to permit corporate money in Tennessee elections, and the Republican Governor signed the legislation that will turn on the flow of corporate cash.

July 14, 2011

Defense Lawyers Call for Changes to the Federal Rules of Civil Procedure

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

The authors of this article have called for substantial changes in the Federal Rules of Civil Procedure.

Included in their proposals is this call for shifting the cost of discovery:

In General. A party submitting a request for discovery is required to pay the

July 11, 2011

The Vanishing Jury Trial

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

On Saturday, July 9, 2011 I was very fortunate to be asked to speak at the Pound Civil Justice Institute ‘s 2011 Forum for State Appellate Court Judges in New York City. This year’s program concerned the huge reduction in civil jury trials in our state and federal court and the impact of the reduced number of trials on our citizens, our democracy, our court system, and the Bar.

The program was moderated by Prof. Arthur Miller of NYU, perhaps the most famous law professor in the country and, without a doubt, the nation’s civil procedure guru.

Marc Galanter from the University of Wisconsin School of Law shared this data I thought your would find of interest;

July 8, 2011

No Cause of Action for Spoliation of Evidence in South Carolina

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

The South Carolina Supreme Court has ruled that there is not cause of action for the negligent spoliation of evidence in that state.

In Cole Vision Corp. v. Hobbs, No. 26988 (S.C. 6/20/11) the defendant counterclaimed and sued plaintiff for negligent spoliation of evidence. Defendant maintained that plaintiff lost a key case of evidence that he needed to defend a malpractice claim brought by a former patient.

The Court held that "South Carolina does not recognize an independent tort for the negligent spoliation of evidence, third-party or otherwise." After referencing the differing views reached by other courts across the country on this subject, the court said as follows:

July 7, 2011

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

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

The Nevada Supreme Court has affirmed a trial judge order that struck a defendant’s ability to argue liability, limiting it to contesting compensatory damages.

In Bahena v. Goodyear, the trial judge struck the defendant’s answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate." The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs" and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated" because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

In affirming the trial judge’s decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff’s’ interrogatories are nothing short of appalling."

July 6, 2011

Ten Ways to Avoid a Legal Malpractice Claim

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

The Attorney at Work site has a helpful post that reminds us of ten ways to avoid malpractice claims.

Here is an excerpt:

4. Document, document, document. It’s not practical to document everything on every matter, but document as much as you can in some contemporaneous manner. Letters are fine, but emails, detailed time entries and marginal notes on documents can be equally effective. In particular, you want to record advice or instructions that involve significant issues or outcomes and major client instructions or decisions. Memorialized communications help confirm what was said or done for the client should you need to look back to explain why or what work was done, to justify an account, or to defend on a malpractice claim.

July 6, 2011

Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury

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

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court, 2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering. Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

June 30, 2011

A Surplus of New Lawyers

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

It comes of no surprise to lawyers that there are lots of lawyers looking for work. Our office receives resumes from lawyers almost on a daily basis, and many have impressive backgrounds.

This article from the June 29, 2011 New York Times describes the state of the employment market for new in the country. The writer explains that in Tennessee it is estimated that there will be 389 jobs for lawyers each year from 2010 through 2015. However, 735 people passed the Tennessee bar exam in 2009. Thus, if the bar exam completion rate stays the same, Tennessee will have 346 more new lawyers than jobs in each of the coming years.

The Tennessee numbers are pretty close to the national average, which reveals that there will only be legal jobs for one-half of the lawyers passing the bar exam.