Day on Torts

August 3, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 3

Many lawyers think that the law concerning depositions is set out only in the Tennessee Rules of Civil Procedure and the case law interpreting those rules. That is not correct.

Public Chapter 55 creates a new subsection to TCA Section 24-9-101, which allows court to award attorney fees and expenses if motion to quash subpoena is granted when the witness is exempt from subpoena to trial. The new subsection is labeled (b).

What is the text of subsection (a)? In other words, what classes of people are exempt from subpoena to trial? Here is the list:

July 31, 2009

Implementation of “Red Flags” Rule Delayed

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

On July 20 I warned you about new federal regulations known as the "Red Flag" rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft. The rules were scheduled to go into effect on August 1.

The FTC, the agency charged with the responsibility to enforce the rules, has delayed enforcement of the rules until November 1, 2009. The following is from the FTC press release:

Commission staff will create a special link for small and low-risk entities on the Red Flags Rule Web site with materials that provide guidance and direction regarding the Rule. The Commission has already posted FAQs that address how the FTC intends to enforce the Rule and other topics – www.ftc.gov/bcp/edu/microsites/redflagsrule/faqs.shtm. The enforcement FAQ states that Commission staff would be unlikely to recommend bringing a law enforcement action if entities know their customers or clients individually, or if they perform services in or around their customers’ homes, or if they operate in sectors where identity theft is rare and they have not themselves been the target of identity theft.

July 30, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 2

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

The second post in this series reports on a new law that confers immunity from civil action upon victims of crime for testimony given at offender’s parole hearing unless testimony is intentionally or maliciously false and defamatory.

Here is the full text of the new statute:

T.C.A. Section 40-38-303.

July 30, 2009

Memphis BBQ Causes Salmonella Infections

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

For the last five or six years my friend Bill Marler, food poisoning lawyer extraordinaire, and I have worked together on food poisoning cases. Bill knows this area like the back of his hand and is widely understood to be the lawyer with the greatest expertise in this field.

One thing I really respect about Bill is that he still practices law at what I call the "retail" level. I contrast that with what I call lawyers who function as "wholesalers;" that is, lawyers who race to file personal injury cases as class actions (medical monitoring is different) and treat cases as "inventory." Bill actually cares about the people he represents, and despite the fact that he files cases across America (unfortunately there is a real food safety problem in America) and spends a lot of time in Washington DC speaking out for food safety he still is hands-on with clients and gives them the attention that they deserve.

Earlier today our firms filed a case on behalf of two people in Memphis who contracted salmonella poisoning after eating food served by A & R Barbecue in Memphis. Both plaintiffs, a father and his son, suffered acute kidney failure as a result of their Salmonella infections, and needed extensive medical treatment, including dialysis. Apparently twenty people were poisoned at this event. Read more about the litigation here.

July 29, 2009

Suing Drug Dealers

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

As you would expect, the Tennessee General Assembly is not particularly fond of drug dealers. But did you know that the General Assemby had passed what they call the "Drug Dealer Liability Act?"

The Act, codified at TCA 29-38-101 et seq, permits the recovery of damages caused by drug dealers. We just used this Act to add an additional cause of action against a man who we alleged engaged in inappropriate conduct with two pre-teen females and from time to time used a drug to help accomplish his actions. The use of the Act was important because (a) it gave us a claim for attorney’s fees and (b) it provides for prejudgment attachment of assets of the defendant.

The Act contains several sections, but this is the section that creates the cause of action, identifies who can file suit, and states what damages can be recovered.

July 29, 2009

A National Medical Safety Board?

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

That is what Tennessee’s own Jim Hall called for in today’s New York Times. An excerpt from Jim’s op-ed piece:

Because American medicine accepts error as an inevitable consequence of treatment, our hospitals, insurers and government do little to respond to unnecessary deaths. If we are to address the problem in a serious manner, we must first change this culture.

Jim is the former chairman of the National Transportation Safety Board. Read the entire op-ed piece here.

July 28, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 1

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

This post is a first in a series of posts that will address new laws passed by the 106th General Assembly and signed into law by Governor Bredesen. The posts will run two or three days per week over the next several weeks.

The first post is a change to the Tennessee Peer Review Law of 1967. The bill will be of interest to any one who does medical malpractice or any other area of health care law.

Here is a summary of the legislation:

July 28, 2009

Dangers Caused By Truck Drivers Who Text While Driving.

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

Texting while driving is now illegal in Tennessee, and a study from the Virginia Tech Transportation Institute reaffirms why the law is necessary.

For truck drivers, the risk of a crash or near-crash event increases by a 23.2 times as compared with non-distracted driving.

Read the entire study here.

July 27, 2009

Tennessee Motor Vehicle Deaths Decrease But Still Higher Than National Average

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

Deaths on Tennessee roads continued to decrease in 2008. A total of 1035 people were killed on Tennessee roads in 2008, down from 1211 in 2007and 1339 in 2004. Nationally, 37,261 people died in motor vehicle crashes in 2008.

Tennessee deaths were 16.55 per 100,000 of population, over 33% higher than the national average of 12.25 deaths per 100,000 citizens.

Of the 1035 Tennessee deaths, 605 involved single vehicle crashes. A total of 95 of the deaths involved at least one large truck.

July 24, 2009

Does Error of Counsel Justify Setting Aside a Default Judgment?

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

Not in the Seventh Circuit, it doesn’t. In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).

The Court ruled as follows:

[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that “[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds.” The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong’s actions, even with BMF’s purported diligence, do not fall within the exceptions to the rule and do not rise to the level of ‘exceptional’ to warrant such ‘extraordinary’ relief.