Day on Torts

October 14, 2009

Rule of the Week – T.R.C.P. 43.04

Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.

Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court. The rule is well-written and self-explanatory.

When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

October 14, 2009

Mistrial and Sanctions Affirmed When Lawyer Violates Order on Motion in Limine

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

Unfortunately, I have been in a trial where opposing counsel repeatedly violated a Court’s order on a motion in limine. Therefore, I must admit I took some pleasure in reading this opinion where the Roman Catholic Diocese of Burlington, Vermont was sanctioned because its counsel violated such an order. The sanction? A mistrial and an award of $112,000 in sanctions.

This is how the Court summarized what occurred that gave rise to an award of sanctions:

Before the June trial, plaintiff filed a motion in limine to exclude any reference to a sexual relationship between Willis [a Roman Catholic priest] and plaintiff’s brother. The trial court granted this motion, stating that "[d]efense questions about this subject are barred as being irrelevant to the case before the court." During its cross-examination of plaintiff, defendant inquired into this relationship. The court sustained numerous objections from plaintiff during the cross-examination. During a break in the trial, the trial court entertained plaintiff’s motion for a mistrial and costs. At that time, defendant indicated that it wanted reconsideration of the pre-trial ruling prohibiting it from showing that plaintiff’s brother and Willis had a sexual relationship. The court orally granted plaintiff’s motion, followed by a written ruling when plaintiff moved for the imposition of costs. The court concluded that during the cross-examination, defendant’s attorney "repeatedly and deliberately violated the court’s pre-trial ruling by asking questions which were designed to tell the jury about this relationship." The court granted plaintiff’s motion for mistrial "because nothing short of a mistrial could have cured the prejudicial effects of defense counsel’s repeated violation of the trial court’s pre-trial ruling."

October 13, 2009

Paul Luvera on Losing Cases

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

Washington State’s outstanding plaintiff’s lawyer offers great advice to those of us who have lost jury trials.

A sample from "First Aid for Lawyers When They Lose Their Case:"

When trial lawyers who are passionate about their client’s cause lose the case, their pain for the loss of their client is palpable. Dealing with losing is always agony and something we never get used to if we are competitive trial lawyers striving for our client’s rights. I’ve often said: losing hurts worse then winning feels good.

October 12, 2009

Fee Approvals When Representing Minors

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

It was almost two years ago that I wrote about Wright v. Wright, No. M2007-00378-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2007). (Post 1) (Post 2) Wright 1 is an opinion authored by Judge Walter Kurtz that reversed a decision to award a plaintiff’s lawyer a one-third contingent fee in a personal injury case brought on behalf of a minor. The lawyer seeking the fee not only did know how much time he spent on the matter but did not submit an affidavit or any evidence of how much time was spent. Nor did he introduce into evidence any information relevant to the RPC 1.5(a) factors that govern fees issues. Frankly, the lawyer here simply assumed that the trial judge would enforce the fee contract (one-third of the recovery) and did not think about the record.

The case was remanded so that a reasonable fee could be determined. After discovery and a hearing, the trial judge awarded the plaintiff’s lawyer a fee of $131,000. (The amount of the settlement of wrongful death case was $425,000.) The child’s guardian ad litem perfected another appeal, arguing that the fee was too high.

Wright v. Wright, No. M2008-01181-COA-R3-CV (Tenn. Ct. App. Oct. 8, 2009) ("Wright 2") affirmed the Trial Court’s award of the $131,000 fee. The opinion details the extensive work done on the case, and reveals how plaintiff’s counsel was able to settle the case for $425,000 despite the fact that the applicable insurance coverage was only $50,000. Also important to the outcome: the child was suing her grandmother, and thus a substantial judgment (or any judgment) was certainly in doubt.

October 11, 2009

CBO Offers New Data on Cost of Medical Malpractice Lawsuits

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

Senator Orin Hatch (R-Nevada) asked the Congressional Budget Office to update its previous findings concerning the effect that restrictions on the rights of patients to hold the health care industry responsible for errors that kill or injure patients ("tort reform").

Here are some of the findings from the report:

"National implementation of a package of proposals similar to the preceding list would reduce total national premiums for medical liability insurance by about 10 percent, CBO now estimates. … CBO estimates that the direct costs that providers will incur in 2009 for medical malpractice liability—which consist of malpractice insurance premiums together with settlements, awards, and administrative costs not covered by insurance—will total approximately $35 billion, or about 2 percent of total health care expenditures. Therefore, lowering premiums for medical liability insurance by 10 percent would reduce total national health care expenditures by about 0.2 percent."
"Combining the effects on both mandatory spending and revenues, a tort reform package of the sort described earlier in this letter would reduce federal budget deficits by roughly $54 billion over the next 10 years. That estimate assumes that a change enacted in 2010 would have an impact that increased over time, achieving its full effect after four years, as providers gradually changed their practice patterns. Of course, the estimated effect of any specific legislative proposal would depend on the details of that proposal." Note: the proposals listed in the letter was a $250,000 cap on non-economic losses, abolition of joint and several liability, changes to the collateral source rule, caps on punitive damages, and reducing the statute of limitations to 1 year for adults and 3 years for children.
"Because medical malpractice laws exist to allow patients to sue for damages that result from negligent health care, imposing limits on that right might be expected to have a negative impact on health outcomes. There is less evidence about the effects of tort reform on people’s health, however, than about its effects on health care spending because many studies of malpractice costs do not examine health outcomes. Some recent research has found that tort reform may adversely affect such outcomes, but other studies have concluded otherwise."

Let us put these numbers in perspective. Americans spend over $45 billion per year on pet care.

October 9, 2009

Computer-Generated Business Records

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

How do you get computer-generated business records admitted into evidence? The same way you get other business records admitted into evidence, according to the Ninth Circuit Court of Appeals.

In U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., _ F.3d _ (9th Cir. Aug. 12, 2009) (No. 07-16187) affirmed a district court’s decision to admit the computer-generated business records into evidence to show payment of indemnity claims and loss adjustment expenses. The appellate opinion reminds us of the four basic steps to admit business records into evidence under FRE 803(6):

As the district court found (1) the underlying data was entered into the database at or near the time of each payment event; (2) the persons who entered the data had knowledge of the payment event; (3) the data was kept in the course of Republic Western’s regularly conducted business activity; and (4) [claims manager] Mr. Matush was qualified and testified as to this information.

October 8, 2009

Another Preemption Case Nears SCOTUS Review

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

On October 22, 2008 the Court of Appeals of California, Fourth Appellate District, Division Three, held that FMVSS 208 preempted the plaintiffs claim that a vehicle with a lap-only seat belt in the rear inboard passenger seat was sold in a defective and unreasonably dangerous condition. Specifically, the court held that

to the extent plaintiffs contend defendants are liable for failing to install a lap/shoulder seat belt in the minivan’s middle row inboard seat, their claim is barred by the version of FMVSS 208 in effect when defendants manufactured the minivan.

The case is Williamson v. Mazda Motor of America, Inc., Case No. G038845 and the opinion is published at 167 Cal. App. 4th 905. The California Supreme Court denied review on February 11, 2009, and plaintiff filed writ of certiorari on April 22, 2009. The case number before the Supreme Court is No. 08-1314. Here is the current version of FMVSS 208.

October 7, 2009

Rule of the Week – T.R.C.P. 7.02 (Motions)

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

Rule 7.02 of the Tennessee Rules of Civil Procedure governs motions. It is important for what it does not say. Here is the text of the rule:

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2)The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules.

October 6, 2009

An Appropriate Handoff

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

Yes, handoffs occur in football. But they also occur in healthcare, when one professional transfers the responsibility for caring for a patient to another provider.

Here is how The Doctor’s Company explains handoffs when talking about hospitalists:

The primary objective of a handoff is to provide accurate information about a patient’s care, treatment, current condition, and any recent or anticipated changes. Handoffs are interactive communications allowing the opportunity for questioning between the provider and the recipient of patient information. For hospitals, the handoffs that occur during the time when a patient is moved to another unit, sent for a diagnostic test, or transferred to a new physician can create continuity of care issues.

October 6, 2009

Profits in the Medical Malpractice Insurance Industry

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

From the American Association for Justice’s new report, The Insurance Hoax: How Doctors and Patients Pay for the Huge Earnings of Medical Malpractice Insurers :

As Congress debates nationwide health care reform, a new analysis reveals malpractice insurers have long-played a cruel hoax on legislators and the public. By systematically distorting profits and losses, insurers created phony “financial crises,” so lawmakers would limit the legal rights of injured patients. Today, while premiums and health care costs skyrocket, malpractice insurers have average profits higher than 99 percent of Fortune 500 companies.

The key findings of the report, which analyzes the annual financial statements of the 10 largest U.S. medical malpractice insurers, include:
• The average profit of these insurance companies is higher than 99 percent of all Fortune 500 companies and 35 times higher than the Fortune 500 average for the same time period.
• Malpractice insurers have seen their profit margins range from 5.9 percent to 74.8 percent, with an average of 31.2 percent.