Day on Torts

March 23, 2010

“Tennessee Jury Verdict Reporter” Statistics – Part 3

As I mentioned in two previous posts, Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee.

This multi-part series will discuss some of the data contained in Shannon’s 359-page report. You can buy the report yourself for $175.00. It is well worth the money. Click here to buy the report. The same link will permit you to order Shannon’s monthly newsletter.

Today we look at medical malpractice verdicts. There were 32 trials in Tennessee in 2009. Plaintiffs won 9 of those cases, and the defense won 23. Seven of those cases were tried in Nashville and five were tried in Memphis.

March 22, 2010

Rule Change in State Court – Service of Pleadings and Papers By Electronic Mail

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

Effective July 1, 2010 a party to a litigation may serve papers in Adobe PDF format via electronic mail to the attorney’s email address. The process is a little more cumbersome than it need be, but it is a step-forward toward increasing the efficiency of law practice and reducing cost.

The rule change is a modification to Rule 5.02 of the Tennessee Rules of Civil Procedure. View this rule change (and the other changes to the Tennessee Rules of Civil Procedure) here.

Note: the amendments proposed to Rules 3, 4 and 26 have not been adopted.

March 22, 2010

Georgia Supreme Court Strikes Down Damages Cap in Medical Malpractice Cases

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

The Georgia Supreme Court has struck down a cap on noneconomic damages in medical malpractice cases, declaring the cap to be a violation of the right to trial by jury. The case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, NO. SO9A1432 (Ga. March 22, 2010). Read the opinion here.

The Court ruled that by "requiring a court to reduce a noneconomic damages award determined by a jury that exceeds the statutory limit, OCGA Sec. 51-13-1 clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function."

March 18, 2010

“Tennessee Jury Verdict Reporter” Statistics – Part 2

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

As I mentioned in last Tuesday’s post, Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee.

This multi-part series will discuss some of the data contained in Shannon’s 359-page report. You can buy the report yourself for $175.00. It is well worth the money. Click here to buy the report. The same link will permit you to order Shannon’s monthly newsletter.

Today we look at wrongful death cases. Total trials in Tennessee in 2009? Just 14. Only three verdicts were returned for the plaintiff and eleven came in for the defense. Seven of those trials were in the medical malpractice area, and six of those were won by the defense. The average verdict in the three successful cases was a little over $2.4 million.

March 17, 2010

Motions To Strike Insufficient Affirmative Defenses

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

I have had several lawyers ask me to post our most recent work in the area of filing motions to strike insufficient affirmative defenses in comparative fault cases.

I have been filing these motions since 1992. A defendant has an obligation to follow Rule 8.03 of the Tennessee Rules of Civil Procedure and set forth the facts upon which a affirmative defense, including the defense of comparative fault, is based. The failure to do so should result in the defense being stricken from the answer.

A defendant has a right to have a reasonable amount of time to investigate the case and amend their answer to assert a comparative default defense of a party or non-party. This is discussed in my article called "Party Planning for Tort Lawyers" in the November 2009 edition of the Tennessee Bar Journal.

March 16, 2010

“Tennessee Jury Verdict Reporter” Statistics – Part 1

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

Shannon Ragland of the Tennessee Jury Verdict Reporter has graciously agreed to permit me to share some of the information he has gathered concerning jury trials in Tennessee.

It is fair to say that Shannon has the most comprehensive collection of jury verdict information in the state. Indeed, in my mind it exceeds that offered by the annual reports published by the Administrative Office of the Courts. Why do I say this? First, Shannon gets paid to collect data and report it accurately. Second, the clerks report data to the AOC, and not every clerk is going to apply the same criteria when he or she completes the report. Thus, there is increased likelihood that data will not be consistently reported and this, of course, impacts the results.

This multi-part series will discuss some of the data contained in Shannon’s 359-page report. You can buy the report yourself for $175.00. It is well worth the money. Click here to buy the report.

March 15, 2010

Form Protective Order For Use in Products Liability Case

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

Tim Edwards of Memphis has kindly shared a protective order in a products liability case.

March 12, 2010

More Proof that the Big Lie is a Big Lie: Medical Malpractice Payments Continue to Fall

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

The following comes to us from an article written by Chelsey Ledue, Associate Editor of Healthcare Finance News:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

March 11, 2010

SCOTUS Will Hear Vaccine Case

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

The United States Supreme Court has decided to hear Bruesewitz v. Wyeth, a case where the Bruesewitz family says there should be legal recourse beyond the administrative process set up by the National Childhood Vaccine Injury Act.

The minor plaintiff suffered seizures two hours after receiving her six-month DPT vaccine in 1992. The seizures caused permanent neurological damage. The Third Circuit Court of Appeals ruled against the Bruesewitz family.

The USSC docket number is 09-152. The issue is stated as follows:

March 10, 2010

Helpful Checklist for Determining Whether A Person is an Independent Contractor or an Employee

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

I received an unsolicited (but not unwanted) email from the Baker Donelson law firm titled "20 Ways Your Independent Contractor Might Be an Employee." The purpose of the email was to warn recipients about ongoing IRS employment tax audits in general and the worker classification issue (are workers employees or independent contractors) in particular.

Well, I looked down the list of issues and it seemed like a pretty good checklist of areas of inquiry in a tort lawsuit to help establish that a so-called independent contractor was in fact an employee and thus the defendant should be vicariously liable for the negligent conduct of that worker. It appears that Baker Donelson may have got the 20-factor checklist from a government publication or from prior cases on the subject but that is a little unclear. That being said, a hat tip to Baker Donelson for sharing this information.

Here are what Baker Donelson calls the "two threshold questions."