On September 28, 2008 FRE 502 become applicable in federal court. The rule provides that under certain circumstances the disclosure of attorney-client material and work product material does not constitute a waiver. Read the full rule here.
Federal Evidence Review is a great resource for infromation about this rule. Click here for all you need to know abou this rule.
Last Monday I referred to the Palsgraf opinion and took the opportunity to re-read it. I suggest you do the same. The dispute between Justice Cardozo and Justice Andrews lives on. Read this and tell me who could have written the exact same words almost 100 years later:
The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining but this is not a duty to a particular individual because as to him harm might be expected.
The first couple sentences sound exactly like Chief Justice Holder’s position on the law of premises liability in Tennessee. To be sure, she would likely draw the causation circle a little tighter than Justice Anderson, but she views the concept of duty much differently than Justices Clark, Wade and Koch (who are relying on precedent). We don’t know where Justice Lee is on the issue yet.
The United States Court of Appeals for the Sixth Circuit recently ruled that federal law applies to determination what sanctions should be available for relief of spoiled evidence in federal question cases. The en banc decision reversed precedent and brought the circuit in line with other appellate courts.
An excerpt: "Because failures to produce relevant evidence fall ‘along a continuum of fault – ranging from innocence through the degrees of negligence to intentionality,’ the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence." [Citations omitted.]
Read Adkins v. Wolever, No. 07-1421 (6th Cir. Feb. 4, 2009) here.
SVMIC, the medical malpractice insurer owned by doctors for doctors, has published information about a seminar it offered to its insureds addressing the issue of surgical checklists.
This is how SVMIC describes the seminar it called "“Applied Aviation Safety Practices for Surgeons and Anesthesiologists:”
The basic premise of these seminars was that human errors, often supported by poorly designed systems, are the primary cause of preventable patient deaths and injuries. These human errors share similarities with, and will respond to, many of the same error reduction methods used in high reliability industries such as aviation and nuclear power. One of the hallmarks of high reliability industries is the conscientious and consistent use of checklists.
Every month I let you know that a new edition of our newsletter – Trial Law Report – Tennessee Tort Law Edition – is in the mail to our subscribers. This month, we are making a free copy available for downloading by each of you, the loyal readers of this blog. (The newsletter is ordinarily printed and mailed on the 1st of each month.)
Trial Law Report summaries every tort, civil procedure, evidence and trial law opinion released by the Tennessee appellate courts every month. We also provide you will a complete listing of all cases pending before the Tennessee Supreme Court and the United States Supreme Court on these subjects. Finally, I write a monthly column on some aspect of the law of trial each month.
The newsletter isn’t cheap – it is $349 plus tax for twelve monthly issues. However, our goal was to create one resource where tort lawyers could read what they need to read about the cases they need to be aware of in the area of torts, civil procedure, evidence and trial. We believe that by delivering a accurate, readable summary of those cases to your desk once a month will save you hundreds of dollars worth of time each month,even if you attempt to keep up with all of them on your own. And if you don’t attempt to keep up with them on your own, we will bring decisions to our attention you would have otherwise missed, making (and saving) you money every month.
"Yeah, the facts demonstrate a Shoney’s buffet of negligence, but there is no proof that any of that negligence caused any harm. So what?"
This case out of Illinois is a classic example. Russell was found severely injured at the bottom of some steps. When found he said "I fell over the railing." He died several weeks later. There were no witnesses to the fall.
The stairs were dripping in negligence. Even negligence per se. But the case was dismissed, and the dismissal affirmed on appeal.
Westlaw charges you for looking at the language of a public act after it has been codified.
The Tennessee Secretary of State has the language of the public act for free at this site. The site includes public acts back to 1997.
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.]
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.]
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:
