Day on Torts

May 14, 2009

Sanctions for Spoliation in Federal Court

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.

May 13, 2009

SVMIC Supplies Us With Surgical Checklist

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

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.

May 12, 2009

Download a Free Copy of Trial Law Report – Tennessee Tort Law Edition

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

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.

May 11, 2009

That Crazy Causation Element

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

"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.

May 7, 2009

Tennessee Public Acts

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

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.

May 6, 2009

TBA Journal – Recreation Limits Litigation

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

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.