Day on Torts

May 6, 2009

TBA Journal – Recreation Limits Litigation

I write a quarterly column on tort law for the Tennessee Bar Journal. The column for the May edition of the publication discusses Tennessee’s recreational use statute, Tenn. Code Ann. §70-7-101 et seq,

An excerpt:

The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: “(1) is the defendant a ‘landowner’ under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?” [ Footnote omitted.]

May 5, 2009

Slip and Fall Claims

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

CNA has issued a white paper titled "Slip and Fall Control Techniques for Commercial Real Estate Owners." The report indicates that more than one million people are injured each year in slip or trip and fall incidents and 16,000 people die from falls.

CNA adds this:

With the aging baby boomer generation, the size and scope of this issue is expected to grow significantly. The National Floor Safety Institute (NFSI) estimates that between 2005 and 2020, the number of seniors in the U.S. will increase from 35 million to 77 million. Statistically, seniors are far more likely to experience
a slip-and-fall accident. For those that are injured, the cost of treatment and recovery time is significantly greater than the average for non-seniors. According to the American Academy of Orthopedic Surgeons, these types of injuries are also the leading cause of hospital admission for older adults. [Footnotes omitted.]

May 4, 2009

Medical Record-Keeping

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

The Doctors Company, a medical malpractice insurer, has published this article about keeping medical records.

An excerpt:

The following entries should appear in the office or hospital records of each patient:

May 3, 2009

May 2009 Edition of the Tennessee Trial Law Report Available

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

The May 2009 edition of the Tennessee Trial Law Report should be arriving in the mailboxes of our subscribers on Monday May 4. The Tennessee Trial Law Report is the only newsletter in Tennessee written to meet the complete needs of the tort law practitioner.

This edition includes a summary of 16 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between March 15 and April 15, 2009. The newsletter totals 43 pages, including 19 pages containing the full-text (in addition to our summary) of the most important opinion issued last month.

The newsletter also includes (a) Part 2 of my new, four-part article of the law of jury selection; and (b) a summary of the status of 20 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

May 1, 2009

Chrylser’s Bankruptcy Filing – A Tort Lawyer’s Thoughts

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

If you are breathing and can read, you know that Chrysler has filed a Chapter 11 bankruptcy petition.

I am not a bankruptcy lawyer. I am not a corporate lawyer. But the filing has some immediate consequences readily apparent to the reasonably prudent tort lawyer.

1. Pending Cases. All tort cases against Chrysler will be stayed by the filing of the petition. In the short-run, it will bring all action in those cases to a halt, even if suppliers and other defendants are parties to the case. In the coming months, motions will be filed to permit the action to proceed against the non-Chrysler defendants and those issues will have to be sorted out. Cases on appeal will also be stayed for some period of time. People who have unpaid judgments against Chrysler will not be able to collect on those judgments. Plaintiffs who have judgments on appeal secured by surety bonds will be able to collect from the surety bond issuer if they are successful on appeal, but the appeal will be stayed in the short-run. Plaintiffs who have judgments on appeal that are not secured by a surety bond will be general, unsecured creditors if they are successful on appeal. Some effort will be made to have some money set aside from Chrysler’s assets to pay pending judgments and pending claims. How much will be paid on the dollar value of those judgments and claims? By what process will the valuation of the pending claims be determined? All of that remains to be seen. Some of you may ask: Chrysler has liability insurance, doesn’t it? Yes, but the self-insured retention is very high.

April 30, 2009

Can A Podiatrist Give Causation Testimony?

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

A Virginia trial judge refused to allow a podiatrist to give causation testimony in a FELA case where a railroad worker alleged his foot problems were caused by conditions in the workplace. The Virginia Supreme Court has agreed to hear the case.

Here is the wording of the assignment of error that the court has agreed to review:

The trial court erred in granting Norfolk’s motions in limine to exclude the testimony of Drs. Zelen and Steffan based upon its finding that they were not qualified, as podiatrists or otherwise, to render expert opinions as to the causation of plaintiff’s physical injuries, and in subsequently granting Norfolk’s summary judgment motion based upon plaintiff’s lack of causation testimony.

April 30, 2009

Thanks to Lexmonitor

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

A heartfelt thanks to Lexmonitor, a daily review of law blogs and journals, for these kind words about my post discussing testimony by podiatrists.

Tennessee injury lawyer John Day has been blogging for years, and his posts display a keen knowledge of what makes a blog consistently readable and valuable to your readership. This post analyzes a case and provides opinion and questions for the reader – a great example of a blog post that will keep readers coming back.

April 29, 2009

Work Life Expectancy Tables

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

Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses.

As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

The factors taken into account in determining work life expectancy are age, gender, education and level of work disability.

April 28, 2009

Sixth Circuit Issues Opinion of Expert Testimony

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

The Court of Appeals for the Sixth Circuit has issued an opinion upholding the admissibility of an medical doctor’s opinion on causation based on application of traditional differential diagnosis theory.

In Best v. Lowe’s Home Centers, Inc., (No. 08-5924) , _ F.3d _ (6th Cir. April 16, 2009) the court reversed a trial judges opinion to exclude a doctor’s conclusion that the plaintiff’s loss of smell was caused by a chemical spill at defendant’s store.

The court said

April 28, 2009

Chamber of Commerce At the Movies

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

According to the Wall Street Journal Law Blog, the Chamber of Commerce is going to start running short films before feature films in movie theaters in the Washington, D.C,area. The films "tell a story of supposed “Lawsuit Abuse” — cases in which people were allegedly dragged into the legal system with the filing of a frivolous lawsuit."

From the blog: “’Lawsuit abuse and the harm it brings to everyday Americans and small businesses is one of the great American tragedies,’” says Lisa Rickard, the president of the Chamber’s Institute for Legal Reform, formerly of Akin, Gump. "’That’s why the silver screen is the perfect venue for these Faces of Lawsuit Abuse short films.’”

After a one month run in DC, the Chamber is going to take the films to select theaters elsewhere in the country.