Day on Torts

July 29, 2009

Suing Drug Dealers

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.

July 23, 2009

Laying A Foundation to Admit a Photograph into Evidence

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

The trial of virtually every personal injury or wrongful death case involves the use of one or more photographs.

The recent decision in Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, __ F.3d __ (2d Cir. July 6, 2009) (No. 08-0639-CV) reminds us that the failure to lay a proper foundation will result in exclusion of photographs at trial. The opinion reminds us that the "standard for admissibility of photographs requires the witness to recognize and identify the object depicted and testify that the photograph is a fair representation of what it purports to portray." The witness attempting to authenticate the photographs identified the object but was not asked whether the photograph was a fair and accurate representation of the object. The exclusion of the photograph was affirmed on appeal.

Recall that "[t]he witness qualifying a photograph … does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it.” Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965)

July 22, 2009

SVMIC – 2008 Financial Results – Part 4

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

I have released three prior posts on the financial condition of State Volunteer Mutual Insurance Company – click here to read them: Part 1, Part 2, Part 3.

The bottom line is that conservative financial management at SVMIC has permitted the company to accumulate a quarter of a billion dollars in net worth, even as the number of policyholders has declined 4% of the last year.

So how is that impacting rates?

July 21, 2009

Justice Programs 2009

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

Penny White, Joe Riley and I are on the road again this Fall for the 2009 Justice Programs seminars. This two-day, 15-hour is designed for Tennessee lawyers who do civil litigation.

We will be in Nashville November 19 and 20, Chattanooga on December 3 and 4, Memphis on December 10 and 11, and Knoxville on December 17 and 18.

Learn more about the program here. Register here.

July 20, 2009

Red Flag Rules for Law Firms

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

The agent who sells us our professional liability insurance coverage sent me this last Wednesday:

On August 1, 2009, new federal regulations enforced by the FTC will go into effect; the so-called Red Flag rules, which require businesses, including lawyers and law firms, to take pro-active measures to detect and prevent identity theft. While implementation of these rules has now twice been postponed, (and some legal professional organizations are protesting their application to lawyers), it is important for lawyers to review them and plan for compliance. Although the FTC does not appear to specify final penalty amounts for non-compliance, it is clear that violators can be subject to significant civil penalties – making this information especially important for anyone who handles personal identity information of clients or customers.

Here is a link to the FTC website where the rules are discussed.