Penny White, Joe Riley and I are on the road again this Fall as part of our annual Justice Programs seminar. You wouldn’t be reading this blog if you didn’t have an interest in Tennessee tort law, and I will be doing my annual summary of changes in the law of torts as part of the two-day, 15-hour program..
Here is our schedule for this year:
The Garretson Firm Resolution Group has issued this report on the status of reporting personal injury and wrongful death claims and the need for the utilization of medical set asides.
The bottom line: starting October 1, 2010 insurers will be required to gather certain information about claimants asserting personal injury and wrongful death claims and share that information with Medicare. More importantly, there is no rule going into effect that requires parties who settle liability claims to calculate a “set aside” amount that the injured claimant must spend on injury-related care before Medicare picks up the tab again.
Here is the Garretson Firm’s recommendations for claimant’s counsel:
Tennessee has pattern jury instructions for civil and criminal cases, but our federal judicial circuit only has pattern instructions for criminal cases.
Here is a list of the federal circuits that have pattern jury instructions in civil and criminal cases, as well as a link to those instructions.
The Tennessee civil instructions are for sale for an outrageous price – $283. If you need to purchase them, go here. If you need financial assistance to buy this book (which is updated every year with the publication of a new book, not a pocket part that can be inserted into the back of the old one) learn more here.
Rule 5 of the Tennessee Rules of Civil Procedure was amended to permit papers to be served on attorneys of parties via electronic mail. Here the language added to Rule 5 to accomplish that result:
(2)(a) Service upon any attorney may also be made by sending him or her the document in Adobe PDF format to the attorney’s email address, which shall be promptly furnished on request. The sender shall include language in the subject line designed to alert the recipient that a document is being served under this rule. On the date that a document served under this rule is electronically sent to an attorney, the sender shall send by mail, facsimile or hand-delivery a certificate that advises that a document has been transmitted electronically. The certificate shall state the caption of the action; the trial court file number; the title of the transmitted document; the number of pages of the transmitted document (including all exhibits thereto); the sender’s name, address, telephone number and electronic mail address; the electronic mail address of each recipient; and the date and time of the transmission. The certificate shall also include words to this effect: "If you did not receive this document, please contact the sender immediately to receive an electronic or physical copy of this document." The certificate shall be sent to all counsel of record.
(b) An attorney who sends a document to another attorney electronically and who is notified that it was not received must promptly furnish a copy of the document to the attorney who did not receive it.
Have you subscribed to the Tennessee Trial Law Report – Tort Law Edition? Each month Brandon Bass and I summarize the recent Tennessee appellate decisions in the field of tort,civil procedure, evidence and trial law and publish those summaries in the TTLR. Importantly, we do not just regurgitate the opinion – we summarize it and give our opinion of whether the decision is consistent or inconsistent with prior law and the public policy of Tennessee.
The newsletter also includes an article by me on some aspect of the law of civil trial in Tennessee. Next month’s edition includes Part 4 of my series on the law of the use of depositions at trial.
Finally, the newsletter includes a list of all cases pending before the Tennessee Supreme Court that are of interest to tort lawyers, indicating the status of those cases before the court (as best we can tell from public data).
ABC News reports that Dr. Frank Ryan, the surgeon who performed extensive plastic surgery early this year on Heidi Montag, was sending a Twitter message about his dog before his fatal car crash Monday in Los Angeles. The dog, who was in the car at the time of the crash, survived injuries to the head, eye and paw. Dr. Ryan died of blunt force head injuries.
New Jersey has a well-developed body of case law on the issue of spoliation of evidence. Tartaglia v. UBS PaineWebber, Inc., 961 A.2d 1167 (N.J. 2008) sets forth the history of the development of the law in the state.
On August 3, 2010 the Supreme Court of New Jersey issued yet another opinion in the area, this time in the context of construction litigation. In Robertet Flavors, Inc. v. Tri-Form Const., Inc., 2010 WL 3022121 (N.J. Aug. 3, 2010), the court wrestled with the issue of what factors to consider when determining what sanction should be imposed for spoliation of evidence in construction litigation. After surveying the law from across the country, the court adopted this test:
[C]ourts confronted with spoliation in the context of commercial construction litigation should recognize that a variety of factors bear on the appropriate remedy. In particular, courts should consider all of the following: the identity of the spoliator; the manner in which the spoliation occurred, including the reason for and timing of its occurrence; the prejudice to the non-spoliating party, including whether the non-spoliating party bears any responsibility for the loss of the spoliated evidence; and the alternate sources of information that are, or are likely to be, available to the non-spoliator from its own records and personnel, from contemporaneous documentation or recordings made by or on behalf of the spoliator, and from others as a result of the usual and customary business practices in the construction industry. Courts should then balance all of those considerations in crafting the appropriate remedy with an appreciation for the ways in which the construction industry itself provides them with unique tools with which to “level the playing field” and achieve an appropriate remedy for spoliation.
All lawyers know that judges don’t like discovery disputes, and some lawyers take advantage of that by violating the rules at depositions.
United States Magistrate Peggy A. Leen entered this Order when confronted with lawyers who ignored the rules. An excerpt:
The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:
There are more and more tort cases arising after criminal acts, and one might forget that the State of Tennessee has subrogation rights to monies received in the later tort action.
T.C.A. Section 29-13-113 grants the state a subrogation right in proceeds recovered by the victim in a later torts suit. The statute also requires that the district attorney be given notice of the filing of the tort suit and copied on all pleadings after the suit is filed.
If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don’t forget that Tennessee has a special act for such torts.
The act is known as the "Therapist Sexual Misconduct Victims Compensation Act." It is codified at T.C.A. Section 29-26-201 et seq.
Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."
