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."
Thanks to each of you who has ordered the third edition of Day on Torts: Leading Cases in Tennessee Tort Law. Hundreds of books have been shipped in the last two months and orders are continuing to flow in.
Day on Torts identifies more than 300 Tennessee tort law subjects and provides summary of the leading case on each subject to give you a quick, readable synopsis of current state of the law. Many of the summaries include citations to other cases, giving you even more insight and helping narrow the scope of your research.
The good news is that books are still available. The bad news is that because the books are hard-cover and designed for pocket parts, once they are gone they will not be available again for three or four years (until the pocket part becomes so thick that a new edition of the book becomes necessary). The expense of a limited, second printing of the third edition is cost-prohibitive. Therefore, those lawyers who do not obtain a copy of the third edition will have to wait until the fourth edition is available to have their own copy of the book.
Today (August 4) I will be speaking on behalf of the Nashville Bar Association about various tort and civil procedure topics that cause lawyers to lose sleep. The title of the speech is " KEY PRACTICE STRATEGIES FOR TORT LAWYERS: SOLVING ISSUES THAT KEEP YOU UP AT NIGHT." The program qualifies for 1.5 hours of CLE credit.
Read more here.
The government of Thailand wants to have a scheme to compensate victims of medical malpractice. Many Thai doctors are opposed to the law. Here is an argument made by the physicians, as reported in Taiwan News:
It means our staff would have to be extra careful during work, which would decrease efficiency," said Somkid Auapisithwong of Thai Federation of Doctors, Main Hospitals and General Hospitals, which looks after the interests of medical practitioners in state hospitals. "We’re already very stretched. Some of our nurses have to work almost 365 days. This would add more stress to our staff. They would have to be extra careful with all sorts of risks and this will hinder their work.
Thanks to Torts Prof for informing me about this article.
This post is part of our continuing effort to advise Tennessee lawyers about substantive law changes resulting from the actions of the General Assembly.
Public Chapter 865 sets forth maximum charges to lawyers (and presumably others) for obtaining medical records. Here are the maximum charges:
The party requesting the patient’s records is responsible to the provider for the reasonable costs of copying and mailing such patient’s records. For other than records involving workers’ compensation cases, such reasonable costs shall not exceed twenty dollars ($20.00) for medical records five (5) pages or less in length and fifty cents (50¢) per page for each page copied after the first five (5) pages and the actual cost of mailing. Any third-party provider of record copying and related services shall be subject to the reasonable cost limits contained in this section and shall not impose any charge or fee for such services in excess of such cost limits. The costs charged for reproducing records of patients involved in a workers’ compensation claim shall be as defined in § 50-6-204.
This post is part of our continuing effort to advise Tennessee lawyers about substantive law changes resulting from the actions of the General Assembly.
Public Chapter 858 sets forth a procedure for helping injured workers obtain medical benefits they are entitled to receive after a judgment or settlement of a worker’s compensation action. It allows a Department of Labor employee to order an employer to pay for treatment and award attorney’s fees and costs incurred by the employee to obtain the benefits.
It became effective on April 30, 2010.
