Day on Torts

August 20, 2009

AAJ Seminar: “Litigating Pharmaceutical and Medical Device Cases”

AAJ is sponsoring a pharmaceutical and medical device seminar at the Venetian in Las Vegas on September 24-25, 2009. The seminar, open only to AAJ members who represent plaintiffs, offers 11.25 CLE hours.

The seminar is an effort lead by AAJ’s Section on Toxic, Environmental, and Pharmaceutical Torts (STEP), which focuses on the toxic effects of pharmaceuticals, pesticides and herbicides, medical devices, consumer products, industrial pollution, and other environmental poisons.

The products that will be discussed include various heart devices, Hydroxycut, Avandia, pain pumps, asbestos, Paxil, and Gadolinium. There is also be a presentation on Chinese drywall.

August 19, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 12

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

Post 12 of this series on changes in Tennessee statutory law of interest to tort lawyers addresses a new law that imposes lighting requirements on bicycles.

Here is the new code section, which replaces existing section (a) of T.C.A. Sec. 55-8-177:

(a) Every bicycle, when in use at nighttime, shall be equipped with a lamp on the
front which shall emit a white light visible from a distance of at least five hundred feet (500′) to the front and either a red reflector or a lamp emitting a red light which shall be visible from a distance of at least five hundred feet (500′) to the rear when directly in front of lawful upper beams of head lamps on a motor vehicle.

August 18, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 11

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

We are up to Post 11 in our series that highlights new changes to Tennessee statutory law of interest to tort lawyers.

The Legislature has modified T.C.A. Sec. 68-11-256 (a) to require all nursing homes to perform a criminal background check on all employees who provide direct care to patients or residents. The background check must be performed before the person is hired.

Read Public Acts, 2009 Public Chapter 384 here.

August 17, 2009

The First Syllable of “Lawyer” is “Law”

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

A Tennessee lawyer who purports to have knowledge and experience in Tennessee medical malpractice law recently wrote a blog post that advised the pubic about statutes of limitations in medical malpractice cases. His post was wrong, and it was obvious to me that he was unaware of the legislation passed in June and that went into effect on July 1, 2009.

Now, you might say, "well John, don’t be a jerk. The law has only been in effect for a little over a month." Sorry folks, in my opinion that doesn’t cut it. If you hold yourself out as having knowledge in a given area of law you have the responsibility to keep yourself reasonably current in that area. The proposed changes to the medical malpractice law have been talked about by those actively involved in the field for months before the legislation was signed by the Governor. The Tennessee Association for Justice list-serves have had numerous posts about the subject. I wrote several blog posts on the issue (here, here, and here.). I wrote a cover-story article for the July 2009 TBA Journal on the changes. In short, there were plenty of opportunities to learn that the law was changing and that it had in fact changed.

I don’t expect every lawyer to keep up with all changes in the law – that is impossible. I don’t expect every personal injury and wrongful death lawyer to keep up with changes in medical malpractice law, for the simple reason that many of these lawyers do not do medical malpractice law. I don’t expect anyone to keep all the details of law in his or her head even in a relatively narrow field like medical malpractice. And of course I am not saying that everyone who does tort work in Tennessee must read this blog.

August 15, 2009

Working Smarter

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

Those of us who typically work for contingent fees have an extra incentive to work smarter. Like many of you, I have done a lot of reading in the field of time managment and project management, looking for ways to improve my productivity through better organization.

I found this article on Harvard Business School’s "Working Knowledge" site that does a nice job summarizing some of the ideas I have read over the years that help improve productivity.

August 14, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 10

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

Post 10 addresses changes to the Personal Rights Protection Act of 1984, codified at TCA Title 47, Chapter 25, Part 11.

Here is a summary of the new law:

Under present law, the Personal Rights Protection Act specifies that an individual is entitled to recover the actual damages suffered as a result of the knowing use or infringement of such individual’s rights and any profits that are attributable to such use or infringement which are not taken into account in computing the actual damages. Profit or lack thereof by the unauthorized use or infringement of an individual’s rights is not a criteria of determining liability.

August 13, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 9

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

Post 9 in our ongoing series of legislation of interest to tort lawyers addresses a new act that clarifies the responsibility of cemetary operators when they learn that a body has been interred in the wrong burial plot at the cemetery. If the cemetary operator complies with the statute no damages can be awarded against the cemetery unless the cemetery acted intentionally or with malice.

Click on the link to read Public Acts, 2009 Public Chapter 365.

August 12, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 8

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

This is Post 8 in my review of the legislation of interest to tort lawyers that was passed by the General Assembly in 2009. Want to see more? Look at the Legislation 2009 category.

This legislation is of interest to those who bring or defend dram shop cases. The new act modifies TCA Section 57-3-406 and TCA Section 57-5-301. Here is a summary of the bill:

Present law prohibits an alcoholic beverage retailer from selling any alcoholic beverages to any person who is drunk and from selling alcoholic beverages to any person accompanied by a person who is drunk. This bill revises this provision to refer to persons who are "visibly intoxicated" instead of persons who are "drunk."

August 12, 2009

Thank You

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

OrderForm (2)(1) Last week I received a letter informing me that I had been selected for inclusion in the 2010 edition of Best Lawyers in America. I have been fortunate to have been included among this distinguished group of lawyers since 1993.

This year I have been listed in the specialties of Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice Law, Personal Injury Litigation, and Product Liability Litigation.

Best Lawyers surveys lawyers to determine who should be included in the publication. Thus, I fully realize that I would not be included in this book if it were not for the votes I received from my fellow lawyers, many of whom deserve equal or even greater recognition for their service to their clients and to the profession. I also realize that I would not be a part of this publication without the wonderful support I receive from every member of our firm, each of whom works diligently every day to serve our clients.

August 11, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 7

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

Here is Post 7 of recent changes to statutory law in Tennessee that I think will be of interest to tort lawyers. As I have said in the last six posts, you can read about additional changes in the law under the Legislation 2009 category.

Public Chapter 206 changed the Governmental Tort Liability Act to include Tennessee Code Annotated, Section 29-20-101 et seq, to specifically include "community action agenc[ies] [and] nonprofit corporation[s] which administer[] the Head Start or Community Service Block Grant programs" as entities covered under the Act.

I believe that this legislation is a result of a case our firm handled against such an organization in East Tennessee earlier this year. We argued that the entity was not covered by the Act (and therefore the damage caps did not apply) because the type of entity was not specifically mentioned in the Act. I predicated at the time we identified the issue that a legislative change would be forthcoming, and this is it.