Day on Torts

After 10 years and almost 3 months in the same location, our firm is moving to a new office.  The new address is 5141 Virginia Way, Suite 270, Brentwood, Tennessee 37027.  The phone number remains 615.742.4880.

Our landlord needed our space for the expansion needs of another  tenant and gave us the opportunity to move to another building it owned several blocks away.   

Brandon Bass pointed out last night that he had never been in the same building for even 8 years in his life. (He joined our firm 8 years ago.)  That provoked me to think about the subject, and I determined that I had been in these offices for longer than any other home or office except the house I grew up in and left in August of 1974.  I am confident that I will find myself turning into the parking lot of our old building from time to time in the coming weeks as I travel back to work on auto-pilot after a hearing or deposition.

The Oregon Court of Appeals has ruled that client money held in a lawyer’s trust account can be counted as an asset for purposes of determining whether the client is eligible for Medicaid benefits.

The case is  Dorszynski v. Department of Human Services,   Case No 20071851  (Oregon Ct. App. October 27,2010).

A couple weeks ago I wrote a post about the spread of litigation funding to divorce cases.

Jordan Furlong has written a very interesting post on litigation funding and, in doing so, raises some real concerns about the future of the legal profession.  An excerpt:

The fact that third-party litigation funding is flourishing, bumping up against the basic principles of the justice system, should be a grave embarrassment to the legal profession. These companies are emerging because the price of bringing a problem to and through the court system for a solution exceeds what 80% of the population can afford, and 80% of the reason those costs are so high is because of us: not just the fees we charge for our work, but also the labyrinthine, process-drenched, time-devouring system of justice we’ve created and currently oversee. The justice system works for judges and lawyers, because we made it and we run it and we work in it every day; it demonstrably does not work for anyone else.

The Colorado Supreme Court has rejected a challenge to the collateral source rule and has ruled that a plaintiff may recover the full, not discounted, amount of medical bills in a personal injury case.

In Volunteers of America Colorado Branch v. Gardenswartz, Case No. 09SC20  (Col. Nov. 15, 2010) the court explained the purpose of the rule:

The rule’s purpose is to prevent a tortfeasor from benefitting, in the form of reduced liability, from compensation in the form of money or services that the victim may receive from a third-party source. See Quinones v. Pa. Gen. Ins.Co., 804 F.2d 1167, 1171 (10th Cir. 1986) (“The rule evolved around the commonsense notion that a tortfeasor ought not be excused because the victim was compensated by another source, often by insurance.”). Accordingly, the rule is somewhat punitive in nature. It prohibits the wrong-doer from enjoying the benefits procured by the injured plaintiff. If either party is to receive a windfall, the rule awards it to the injured plaintiff who was wise enough or fortunate enough to secure compensation from an independent source, and not to the tortfeasor, who has done nothing to provide the compensation and seeks only to take advantage of third-party benefits obtained by the plaintiff. See Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1074 (Colo. 1992) (“To the extent that either party received a windfall, it was considered more just that the benefit be realized by the plaintiff in the form of double recovery rather than by the tortfeasor in the form of reduced liability.”).

The United States Court of Appeals for the Fifth Circuit has ruled that a trial judge appropriately admitted surveillance videos of the plaintiff into evidence.  The videos were taken in a case where the quality of life of the plaintiff after the accident was "hotly disputed."   The videos showed the plaintiff engaged in activities at casinos, but were admitted despite an objection under FRE 403 that the probative value was outweighed by the danger of unfair prejudice that some jurors might consider his gambling immoral.

The Court explained that  the plaintiff’s “post-accident quality of life was hotly disputed, and plaintiff’s witnesses testified in detail regarding the allegedly severe post-accident limitations plaintiff faces, including the inability to count money, make change, or be in crowds,”  and thus concluded that the video’s probative value of his casinos visits “contradict[ed] these statements” and that this “weighs heavily against a hypothetical juror’s moral aversion to gambling.” 

The case is Baker v. Canadian National / Illinois Central R.R., 536 F.3d 357 (5th Cir. 2008).