Day on Torts

September 14, 2010

Wrongful Death of Children in Foster Care

The first law review article on the topic of "Wrongful death of children in foster care" has recently been published in the University of La Verne Law Review, 31(1), 25-44. The article is co-authored by Daniel Pollack, Professor, School of Social Work, Yeshiva University, and a frequent expert witness in child welfare and foster care cases, and Gary L. Popham, Jr., an attorney in Arizona.

The article surveys wrongful death cases filed in various states involving the death of children in foster care. Part I discusses wrongful death claims in general, and Part II discusses foster care. Part III discusses specific cases involving claims of wrongful death filed in various states which arose from the death of a child in foster care. Lastly, Part IV briefly reviews the key aspects of foster care wrongful death cases.

For a copy of "Wrongful death of children in foster care" please contact Professor Pollack at dpollack@yu.edu.

September 11, 2010

Googling Potential Jurors

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

The Internet Cases blog alerted me to this case. Apparently, plaintiffs counsel in a medical malpractice case began using his laptop to "Google" potential jurors to learn background information about them. The Court questioned this effort as follows:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFFS COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

September 10, 2010

Motor Vehicle Injuries and Deaths Decline

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

U.S. Transportation Secretary Ray LaHood released updated 2009 fatality and injury data showing that highway deaths fell to 33,808 for the year, the lowest number since 1950. The record-breaking decline in traffic fatalities occurred even while estimated vehicle miles traveled in 2009 increased by 0.2 percent over 2008 levels.

In addition, 2009 saw the lowest fatality and injury rates ever recorded: 1.13 deaths per 100 million vehicle miles traveled in 2009, compared to 1.26 deaths for 2008.

Fatalities declined in all categories of vehicles including motorcycles, which saw fatalities fall by 850 from 2008, breaking an 11-year cycle of annual increases.

September 9, 2010

Adobe Online Digital Signing Service

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

Adobe has created an Online Digital Signing Service. When the document is digitally signed, no changes may be made to it. The document is also time-date stamped and certified.

Private Investigator Privilege

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

A lawyer called me the other day and asked me if a lawyer’s communications with his or her private investigator are privileged under Tennessee law. The answer is "yes," as provided in T.C.A. § 24-1-209:

Communication between an attorney and a private detective or investigator hired by such attorney, while acting in their respective professional capacities shall be privileged communications.

September 7, 2010

NPR Article: ” Costs of Defensive Medicine May Be Overstated”

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

This article from NPR caught my eye. Rep. Tom Price (R-GA), a physician, said recently on the House Republican website America Speaking Out that the tab runs "an astounding $650 billion each year. That’s 26 percent of all money spent on health care."

As the article notes,

a series of studies published in the current issue of the policy journal Health Affairs suggests that number is not only dramatically too high, but that most of the popular proposals for addressing the medical malpractice problem — particularly capping damages for "pain and suffering" would do little to reduce the practice of defensive medicine.

September 5, 2010

Justice Programs Seminar 2010

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

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:

EAST TENNESSEE

September 2, 2010

Medicare Reporting as of October 1, 2010

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

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:

August 31, 2010

Pattern Jury Instructions

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

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.

August 30, 2010

New Rule Change – Service By Email

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

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.