I recently wrote this post about the certificate of merit law struck down by the Washington Supreme Court. Here is an editorial from The Olympian which supports the Court’s decision.
Here is an excerpt:
The justices were right to keep the barrier between the legislative and judicial branches of government. They were equally correct to strike down the barrier to malpractice lawsuits.
The Tennessee Supreme Court has published a proposed re-draft of Rule 27, the rule which addresses the process of judical evaluation. Set forth below is my letter to the Court that addresses one phrase in the proposed rule. NOTE: this letter was written in my individual capacity and not as Chair of the Tennessee Judical Performance Evaluation Commission.
I have read the draft of revised Supreme Court Rule 27 and offer one comment for consideration by the Court. I respectfully request that the Court remove the phrase “In the face of society’s increasing litigiousness…” from the beginning of Section 1.03. This statement is in essence of finding of fact that is unwarranted given what we know about our civil justice system in Tennessee.
Court filings in civil court of almost every type have decreased in Tennessee over the last three years. According to the 2007-08 Annual Statistics Report, total Circuit Court filings in 2005-2006 were 65,039; in 2007-08 they were 62,204. Total Chancery Court filings in 2005-06 were 64,808; in 2007-08 they were 63,256. The number of civil appeals and applications to the Court of Appeals in 2005-06 were 880; in 2007-08 they were 867. Rule 9, 10, and 11 applications to the Supreme Court were 936 in number in 2005-06. In 2007-08 there were a total of 843 of those applications. The data for 2008-09 is not yet publically available.
As this article in Wednesday’s Washington Post explains, electric cars present a new type of hazard to pedestrians and those with impaired sight: you can’t hear them coming. At low speeds (under 6.2 MPH) the cars can literally sneak up on you and put you at risk of serious injury. One study says that pedestrians face a 50% increased risk of injury from cars that are backing-up and turning.
The article explains that the car manufacturers are thinking about putting artificial noises into these vehicles to reduce the risk of injury. Will we see product liability claims against car manufacturers for making vehicles that are too quiet? Federal legislation is in the works to require manufacturers to equip such cars to have non-visual alerts so that pedestrians can determine the vehicle’s location, motion and speed.
The use of electric cars will make it necessary for lawyers who do car accident cases, particularly those involving pedestrians, to understand what type of motor was in the car. One can argue that a person driving an electric car at low speeds has an increased responsibility to be on the look-out for pedestrians and use the horn to warn them as the car approaches. The lack of engine noise deprives pedestrians of an opportunity to use one of their senses – hearing – to avoid an injury. This is particularly true for pedestrians who are children or who are elderly, or even for adults who are obviously pre-occupied with caring for children, talking on a cell phone, or juggling packages.
Here is an op-ed from today’s Politico titled "Putting Trial Lawyers out of Business."
August was quite the month in the ongoing health care saga. Death panels. Scaring seniors. Angry mobs discovering new villains to blame for the terrible health care system we find ourselves having to fix today.
And then we have the tried-and-tested scapegoat for all of America’s ills and woes: trial lawyers.
A former patron at the Coyote Ugly Saloon in Nashville has sued the entity, claiming she was injured when she fell off a slippery bar. She claims that the bar surface should have been kept dry (and therefore safe) because she was invited to dance on it by employees. She suffered a head injury and lost her sense of smell.
Here is a big surprise for you: the plaintiff "had had a few drinks." Her lawyer claims she was not intoxicated, a fact that, if true, may actually hurt her case if in fact she was invited to dance of the bar by Coyote Ugly employees as she claims. Why would that hurt her case? If she was obviously intoxicated one could argue that the employees should not have invited her to dance on the bar because they should have known that she could not do so carefully. If she was sober and appeared that way, they will argue that (a) she had the ability to make a judgment about whether she wanted to do so and assumed the risk of falling; and (b) she had the ability and opportunity to see what hazards, if any, existed on the bar and either avoid the hazards or stop dancing.
I have never been to the Coyote Ugly Saloon, in Nashville or any of its other locations. I have never seen the Coyote Ugly movie. But I have been in lots of bars in lots of places, and a fair number of bars where, from time to time, patrons jumped up and danced on the bar. I have tended bar in four different places, and indeed I was known in my youth to occasionally grab a bottle of booze and walk up and down the length of the bar, pouring booze down the throats of blurry-eyed but eager college students, their necks protruding and mouths wide open, like baby birds in the nest waiting for mama bird to bring a juicy grub home for breakfast. My point: there is little I haven’t seen in some bar somewhere at sometime.
Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery. Here is the text of the rule:
A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.
As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.
For decades people have spread false or half-true stories about lawsuits. Here is the latest one I heard the other day on a talk radio show:
A prisoner filed a $3M lawsuit alleging that a prison guard forced him to rub his bologna sandwich on his (the prisoner’s) penis and then forced the prisoner to eat it. This is offered as yet another example of a litigation system run amok.
True? In part. Yes, a prisoner has filed a $3M civil rights lawsuit, seeking $1M in compensatory damages and the balance in punitive damages. It is true that it is alleged that two deputies made a prisoner rub a bologna sandwich against his penis.
Do you have a question about comparative fault law in Tennessee? Or the interaction between comparative fault law and civil procedure? If so, you may wish to consult Tennessee Law of Comparative Fault.
Donald Capparella and I wrote the original edition of the book, and John Wood joined us for the second and third editions. Unfortunately, West Publishing does very little to let Tennessee lawyers know that the book exists.Here is a listing of the book’s chapters:
The book is available here for $118.15 (no shipping charge). West Publishing says the book is sold in hardcover – that is incorrect. It is a softcover book.
President Obama announced yesterday that the government will set aside $25 million to support state grants for pilot programs to reduce medical malpractice lawsuits.
ABC News describes the grant process this way:
The Department of Health and Human Services will oversee the process for states to launch and test initiatives that meet the following parameters:
• Put patient safety first and work to reduce preventable injuries;
• Foster better communication between doctors and their patients;
• Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits; and
• Reduce liability premiums.
The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.
According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog
“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”
