Day on Torts

June 7, 2009

Seminar on New Medical Malpractice Litigation

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law. The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar. Each provision of the legislation will be discussed in detail. I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

June 6, 2009

Effect of Tort Reform Legislation

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

Walter Olson at Point of Law shares a study from the Pacific Research Institute on the effect of various tort reforms. The study, was authored by Nicole V. Crain, W. Mark Crain, Lawrence J. McQuillan, and Hovannes Abramyan, and is titled "Tort Law Tally: How State Tort reforms affect Tort Losses and Tort Insurance Premiums".

Here is an excerpt from the executive summary:

Of the 25 tort reforms that we examine, the statistical analysis identifies 18 reforms to state civil-justice systems that significantly reduced tort losses and tort insurance premiums from 1996 through 2006. For some categories of tort cases, specific reforms cut payouts by more than 50 percent. The cumulative effect of reforms across all tort categories is a 47-percent reduction in losses and a 16-percent reduction in insurance premiums for consumers. Some tort reforms are highly effective at reducing costs in certain tort categories, but are ineffective in other tort categories. It is important that reformers pick the right tool for each problem. If we order the tort reforms according to each reform’s ability to reduce aggregate tort losses, the top eight reforms are: attorney-retention sunshine (12 percent), Daubert/Frye (10 percent), frivolous lawsuits (7 percent), jury service (6 percent), appeal-bond caps (4 percent), negligence standard (3 percent), non-economic-damage caps (2 percent), and medical-malpractice damage caps (1 percent).

June 5, 2009

Medical Malpractice Filings Dropping

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

The requirement of pre-notice and a certificate of good faith (T.C.A. Sec. 29-26-121 and 122) has had a significant effect on filings of medical malpractice cases.

From October 1, 2008 (when the new law came into effect) until April 30, 2009 there were only 111 medical malpractice cases filed in the entire state. During the same seven-month period a year earlier there were 314 filings.

Here is the data for the some of the larger counties in the state:

June 4, 2009

SCOTUS Reverses Tennessee FELA Case

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

The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer. The worker alleged that his work exposed him to asbestos, which caused asbestosis. He sought pain and suffering damages for fear of developing lung cancer.

The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable. The Tennessee Court of Appeals upheld the trial judge’s refusal to give such an instruction. The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer." (Interesting rationale, isn’t it? There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages. The worse the product, the higher the standard, I guess.)

Doesn’t the gatekeeper function of the court in evaluating expert testimony already address this issue? Not according to the Supreme Court;

June 4, 2009

More on GM and Chrysler Products Claims

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

Here is an article from The Hill that gives more information on how existing products liability claims against GM and Chrysler will be handled. Bottom line: claimants will be unsecured creditors, and will be thrown into the pot with all of the other unsecured creditors.

Of course, to the extent that the claims are covered by insurance, and the insurance company is still viable, the money should be paid. The problem, of course, is that the self-insured retention for these companies is quite high (I don’t know how much) and thus those able to prove their claims will be in the unsecured creditor pool for the retention amount and can only look to the insurance company for excess amounts.

For my other posts on this subject look here, here, and here.

June 4, 2009

New Medical Malpractice Notice and Certificate of Good Faith Bill Passes Senate

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

SB 2109 passed the Senate at 11:36 and is now on its way to the Governor’s desk. The Bill passed the House (HB2233) in May. There is no indication that the Governor will not sign the legislation.

The bill dramatically changes the law that came into effect just last October 1, and impacts both the pre-suit notice and the certificate of merit provisions. The effective date of the bill is a little tricky and bears careful study, but the notice provisions come into effect July 1, 2009.

Generally speaking, the law makes it easier to give notice of a potential medical malpractice claim and gives more specifics about what the notice must say. It also requires that the claimant provide a HIPPA-compliant authorization with the notice.

June 4, 2009

Seminar on New Medical Malpractice Legislation

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

The Tennessee Bar Association is sponsoring a seminar to educate lawyers on the new medical malpractice statute passed by the Senate earlier today. If signed by the Governor, and there is no reason to believe that he will not sign the bill, the legislation makes major changes in medical malpractice procedural law. The TBA has selected me as the speaker for this program.

The seminar will be webcast at 11:00 CDT on Monday, June 15, 2009.

A portion of the legislation is effective July 1, 2009 , but the transitional issues will be discussed in the seminar. Each provision of the legislation will be discussed in detail. I participated in all of the negotiations concerning this legislation and will provide a history of how the legislation developed.

June 4, 2009

Man Sues Strip Joint

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

Stripper allegedly kicks patron in the head. Strip joint manager says dancer kicked him after he "violently slapped … her buttocks." The stripper did not return calls to WPTV, the Florida TV station that reported this story. Patron claims permanent injury and sues strip joint.

There is no indication whether the patron is married or, if so, whether his wife filed a loss of consortium claim.

No, Jeff, the WPTV article does not state the stripper’s home number.

June 3, 2009

Victims’ Lawyers (and Others) Discuss GM and Chrysler Products Claims

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

Here is an interview with two plaintiffs’ lawyers who are actively involved in seeking monies for tort claimants who have claims against Chrysler and General Motors.

I have also included an article from www.HispanicBusiness.com that says "Fiat will be protected from any product liability lawsuits arising from claims of flaws in Chrysler vehicles sold before the sale’s closing later this month. Anyone filing such lawsuits will be able to recover only from the limited assets of the old company."

Finally, here is the point of view of a claimant as published in the Daily News.

June 2, 2009

Chrysler Sale Bars Future Tort Claims

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

I have read Judge Gonzalez’s Order of June 1 concerning the sale of substantially all of the assets of Chrysler to Fiat, and it certainly appears to me that the sale will cut off future products liability claims.

Here is the key language Pages 42 – 44 of the Court’s Order.

Category (3) consists of tort and consumer objections. Those objections relating to lemon law and warranty claims have been resolved by the modification of relevant language in the Fale order. An objection (ECF Docket No. 1231) was raised regarding an environmental claim, but the property to which the claim related is no longer owned by the Debtors and the objection is therefore overruled. Various objections were raised related to property damage claims and personal injury and wrongful death claims, including those which have not yet occurred. Some of these objectors argue that their claims are not “interests in property” such that the purchased assets can be sold free and clear of them. However, the leading case on this issue, In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003) (“TWA”), makes clear that such tort claims are interests in property such that they are extinguished by a free and clear sale under section 363(f)(5) and are therefore extinguished by the Sale Transaction. See id. at 289, 293. The Court follows TWA and overrules the objections premised on this argument. Even so, in personam claims, including any potential state successor or transferee liability claims against
New Chrysler, as well as in rem interests, are encompassed by section 363(f) and are therefore extinguished by the Sale Transaction. See, e.g., In re White Motor Credit Corp., 75 B.R. 944, 949 (Bankr. N.D. Ohio 1987); In re All Am. Of Ashburn, Inc., 56 B.R. 186, 190 (Bankr. N.D. Ga. 1986).