Day on Torts

October 9, 2009

Computer-Generated Business Records

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.

October 5, 2009

Proposed Rule Change in Federal Court for the Middle District of Tennessee

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

The United States District Court for the Middle District of Tennessee has released for public comment proposed changes in the local rules. Here is a red-lined version of the proposed rules. The comment period ends October 31, 2009.

Most of the rule changes address of change of the time periods required for responding to motions, providing information for settlement conferences, designating deposition testimony for trial, etc. The rule changes are necessary because of changes in the Federal Rules of Civil Procedure.

October 4, 2009

Videos of Erin Andrews and the Nashville Connection

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

It was reported several months ago that nude videos of ESPN reporter Erin Andrews were circulating on the Internet. The pictures were taken in several hotels. The man accused of taking the videos, Michael David Barrett, has been arrested.

It turns out that a majority of the videos were taken at the Nashville Marriott at Vanderbilt University. Apparently, the photographer was able to learn which room Ms. Andrews was staying in and was able to rent a room next door. He allegedly modified the peep hole in the room to be able to video Ms. Andrews. Read more in The Tennessean.

Several interesting questions arise in the mind of the reasonably prudent tort lawyer. First, how was Mr. Barrett (or whoever took the videos) able to learn Ms. Andrews’ room number? Most hotels will not give anyone, even an alleged spouse, the room number of a guest. Indeed, most hotels will not even announce your room number when you check in, preferring instead to write it on the inside of document that holds the card key that permits you to enter your room. I wonder how Mr. Barrett (or whoever) was able to obtain the room number of a celebrity?

October 3, 2009

October 2009 Tennessee Trial Law Report

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

The October 2009 edition of the Tennessee Trial Law Report is in the mail.

This edition includes a summary of 17 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between August 15 and September 15, 2009. The newsletter totals 35 pages, including 17 pages containing the full-text (in addition to our summary) of the most important opinions issued last month.

The newsletter also includes (a) my continuing series on The Law of Trial (this month’s article concerns the "Rule;” and (b) a summary of the status of 11 cases of interest to tort lawyers that are pending before the Supreme Court of Tennessee.

October 2, 2009

New Attorney General Opinion on Railroad Crossings

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

The Tennessee Attorney General’s Office has issued an Opinion that provides that "Tenn. Code Ann. § 65-12-108 does not require a train engine operator to blow a train’s whistle or horn before crossing a private drive. Tenn. Code Ann. § 65-12-108 only requires that a train engine operator blow a whistle or horn at public railway crossings."

The Opinion references a recent decision from the federal court in East Tennessee:

In Artrip v. Norfolk Southern Railway Company, No. 2:08-CV-200, 2009 WL 152482
(E.D. Tenn. Jan. 22, 2009), the United States District Court for the Eastern District of Tennessee relied on Tennessee state law in holding that there is no requirement for a train engineer to sound a whistle when approaching a private railroad crossing. In Artrip, the plaintiff brought a claim against Norfolk Southern Railway Company after the decedent was struck and killed at a private railroad crossing in Sullivan County, Tennessee. Id. at *1. The plaintiff alleged that the train operator’s failure to sound a whistle warning before crossing the private drive was an act of negligence. Id. at *3. However, the District Court found no merit in plaintiff’s allegations of negligence, concluding that “although the locomotive did not blow its whistle, there was no requirement that it do so at a private crossing.” Id. at *13 (citing 49 C.F.R. § 222.25 and Tenn. Code Ann. § 65-12-108(1)). Summary judgment was granted in favor of the train operator, and the plaintiff’s claims were dismissed. Id. at *15.

October 2, 2009

More Information About Texting and Use of Cell Phones While Driving

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

There was a big conference in Washington, D.C. this week that addressed cell phone use and texting and how these practice impaired a driver’s ability to focus on the safe operation of his or her vehicle.

The two-day summit brought together safety experts, researchers, industry representatives, elected officials and members of the public to share their expertise, experiences and ideas for reducing distracted driving behavior and addressing the safety risk posed by the growing problem across all modes of transportation.

Department of Transportation Secretary LaHood announced new research findings by the National Highway Traffic Safety Administration (NHTSA) that show nearly 6,000 people died in 2008 in crashes involving a distracted or inattentive driver, and more than half a million were injured. On any given day in 2008, more than 800,000 vehicles were driven by someone using a hand-held cell phone. To further study how cell phone distraction affects commercial truck and motor coach drivers, Secretary LaHood also announced a new study the Federal Motor Carrier Safety Administration (FMCSA) is undertaking this month through June 2010. The study will help FMCSA better understand the prevalence of cell phone distraction in conjunction with crashes and near-crashes.