Day on Torts

March 17, 2009

New Rules Adopted by General Assembly

The Tennessee General Assembly has passed resolutions approving the rule changes proposed by the Tennessee Supreme Court. The rule changes will be effective July 1, 2009.

Here is a brief summary:

Civil Procedure: There are changes to 11 different rules or comments on rules – Rule 1, 8, 12, 23, 34, 45, 51, 52, 55, 60 and 65. Two of the most significant changes are (a) non-parties can be ordered to make property available for an inspection; (b) judges must state findings of fact and conclusions of law in non-jury trials.
Electronic Discovery: A significant number of rules have been amended to incorporate specific rules concerning electronic discovery. The new rules represent a substantial change in Tennessee law.
Evidence: There are changes to 404, 703, 803 and 804. The changes to Rule 703 and 803 are of particular importance to tort practitioners.
Appellate Procedure: There are changes to Rule 13 (comment only) and 36; a new rule concerning mediation during an appeal is adopted as Rule 34.

The links will take you to the Order setting forth the rule changes. I will discuss some of the more important changes in more detail during the coming weeks.

March 16, 2009

Manual on Uniform Traffic Control Devices

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

The Manual on Uniform Traffic Control Devices defines the standards used by road managers and contractors nationwide to install and maintain traffic control devices on all streets and highways. The MUTCD is published by the Federal Highway Administration (FHWA) under 23 Code of Federal Regulations (CFR), Part 655, Subpart F. The MUTCD has been adopted as the law in Tennessee; violation of the MUTCD is negligence per se. Here is a list of the other states that have adopted the MUTCD.

If you have a case that involves an injury or death at a road construction site you will want to consult this manual to determine if the contractors involved followed the minimum standards established by this manual. The manual also applies to governmental entities and others placing road signs.

Here is the 2003 edition of the MUTCD with Revisons 1 and 2 Incorporated, effective date December 2007. Here is the Table of Contents. This site also has the previous editions of the MUTCD.

March 16, 2009

Birthday of William L. Prosser

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

Yesterday (March 15) was the 111th birthday of William L. Prosser, author of the torts text used by most of us in law school and Reporter for the Restatement (Second) of Torts.

March 15, 2009

A Look Back: Sunday Spoof of the Past

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

President Obama hasn’t been a resident at the White House so long that we forget how President Bush gave us ammo for our occasional Sunday Spoof.

Here is one from February 5, 2006 titled "President Bush: Lawyers to Blame for Lack of Krispy Kreme Stores."

March 13, 2009

Medical Malpractice Filings Down – New Statutes Reducing Number of Lawsuits

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

We have some preliminary data on the number of medical malpractice case filings in certain counties since the October 1, 2009 effective date of the medical malpractice notice and certificate of good faith statutes.

One new statute requires that actual notice be given to defendants in med mal cases before a lawsuit is filed. The other requires counsel to execute a certificate of good faith that arises after consultation with experts.

Here are the med mal filings in the following counties in the last three months of 2007 and 2008:

County	4th Q. 2007	4th Q. 2008
Davidson	30	11
Franklin	2	1
Hamilton	5	1
Knox	15	2
Maury	1	1
Putnam	2	1
Robertson	0	1
Rutherford	7	1
Shelby	38	3
Sullivan	12	1
Washington	8	4
Total	120	28

Thus, in these counties, med mal filings were down over 75%. The total number of med mal filings in the entire state for the fiscal year ending June 30, 2008 was 537. These eleven counties had 440, or 82%, of the total med mal filings for the entire state. Assuming that the other 88 counties had reduced filings in the same proportion to the counties listed, total filings for the last three months of 2008 would number 35.

To be fair, three months is not a representative sample. In addition, there was probably an increase in filings before October 1, 2007, which would have depressed filings in the next three months. Finally, if notice is given, the statute can be extended under certain circumstances, and that too could account for a decrease in filings in the last quarter of 2008.

That being said, this is the first objective data that we have seen that the new statute has impacted med mal filings. I have predicted that med mal filings will be down 40% as a result of the new statutes. In other words, I believe that filings will be down to about 332 per year as a result of the new statutes. Time will tell if my projection is correct.

By the way, the new statutes are T.C.A. Sec. 29-26-121 (Notice) and 29-26-122 (Certificate of Good Faith).

March 12, 2009

For Consumers: What To Do If You Are Solicited By A Lawyer

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

Ken Shigley at the Atlanta Injury Law Blog wrote this interesting post where he advises consumers who have suffered a tragic accident what they should do if they are solicited by lawyer.

Ken offers this advice:

If you are solicited about your injury or death case, you may consider doing the following:

March 11, 2009

Off Topic – Should Obama Get Credit for Yesterday’s Market Increase?

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

All weekend I heard the drone of certain business reporters and various members of the Republican Party that President Obama was responsible for the declines in the stock market over the last six weeks.

Well, the market went up 5.8% yesterday. Should the President get the credit for that increase?

Of course not. And he should not get the blame for what has happened the last six weeks. The mess we now find ourselves in was created over the last thirty, forty or fifty years by a series of mistakes made by lots of people in the public and private sector. Anyone who says that they thought that the economic situation would materially improve in the last six weeks is a simpleton, a liar, or both..

March 10, 2009

Looking Behind the Curtain

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

Both the federal courts and Tennessee state courts have strict rules about the types of inquiry that can be made into a jury’s verdict. The general rules for impeaching a jury verdict are set forth in Rule 606(b) of the rules of both systems and in a relatively few number of cases. Why so few? First, there are very few trials and therefore very few verdicts to impeach. Second, there are even fewer cases where the parties can afford to thoroughly investigate what goes on "behind the curtain."

United States v. Siegelman is an extraordinary case involving a criminal charges against the then-Governor of Alabama. He was convicted, looked behind the curtain, found evidence of juror misconduct concerning exposure to extraneous information and improper communications during the deliberation, and brought it to the attention of the court. The court then made its own inquiry, calling the jurors to a hearing and examining them. The court determined that some me embers of the jury saw “(1) a copy of the Second Superseding Indictment obtained from the district court’s own website; and (2) juror information from the website concerning the foreperson’s obligation to preside over the jury’s deliberations and to give every juror a fair opportunity to express his views.”

The trial court dismissed the allegations of jury misconduct, and last week the 11th Circuit affirmed the trial judge’s decision. Here is a summary of the opinion as contained on the extraordinary Federal Evidence Blog. Here is a copy of the 11th Circuit opinion.

March 10, 2009

Nashville Scene Speaks Out Against Efforts by Nursing Homes to Limit Liability for Malpractice

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

An article by Jeff Woods at Nashville Scene:

The nursing home industry is back at the legislature this session demanding a law to cap its liability in Tennessee courts for neglecting and abusing residents. That’s even though a legislative study committee, which met once after last year’s bill failed, decided more time is needed to write balanced legislation. One lawmaker last year dubbed the bill the "Kill Old People Cheap" Act. If anything, this new version is even more audacious.
Residents and their families could win no more than $300,000 in any lawsuit for so-called non-economic damages–intangible harm such as pain, emotional distress, disfigurement or loss of a loved one. In addition to capping those damages, the bill would place health services provided by nursing homes under the same rules as medical malpractice cases, making it harder and costlier for residents to prove negligence. All that was in last session’s bill.
What’s new is this devious provision: Should a jury actually award punitive damages against one of our state’s wretched nursing homes, half the cash would be snatched right out of the patient’s hands and placed into a state fund. Where would that money go? Back to the nursing home industry, of course.
The prime force behind the legislation is National Healthcare Corp., which owned the Nashville nursing home where 16 residents died in a fire five years ago. Fighting the bill is Tennessee Citizen Action–a coalition of trial lawyers, advocates for the disabled and labor unions. They say the bill shields homes from responsibility for bad care. The group’s executive director, Tom Peters, says:
"This bill is one of the most outrageous and extreme examples of corporate greed and political over-reaching that we have ever seen. It provides near-complete immunity when homes abuse or neglect residents and does nothing to improve care.
"The quality of care in many Tennessee nursing homes is shameful; there is no other way to characterize it. This bill would ensure that care only gets worse as it completely protects homes when they cause direct harm to the elderly. Several of the legislators who have signed their name to this bill are strong right-to-life advocates, but nothing in this bill will protect the sanctity of life for our nursing home residents. Tennessee Citizen Action stands strongly opposed to this deceptive and purposefully misleading legislation."
Here are the bill’s sponsors (as you will note, even a couple of Democrats are for the nursing home industry): Sen. Jim Tracy (R-Shelbyville), Rep. John Lundberg (R-Bristol), Rep. Steve McDaniel (R-Parkers Crossroads), Rep. Vance Dennis (R-Savannah), Rep. Bill Harmon (D-Dunlap), Rep. Lois DeBerry (D-Memphis), Rep. Jason Mumpower (R-Bristol), Rep. Judd Matheny (R-Tullahoma), Rep. Glen Casada (R-Franklin), Rep. Joe Carr (R-Lascassas).

March 9, 2009

Defense Firm To Be Penalized for Fraudulent Removals?

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

A defense firm has been threatened with severe sanctions for allegedly engaging in a pattern of fraudulently removing cases from state court to federal court in Louisiana. Sanctions on the table? Not only a financial penalty but also also barring members of the firm from practicing in federal court.

Here is a copy of the federal judge’s memorandum opinion in the case. The opinion certainly makes it appear that the judge has done his homework and is, shall I say, extremely irritated.

This article explains the lengths to which the firm is going to avoid sanctions.