Day on Torts

February 4, 2009

Lawyer Medical Malpractice Reports Due March 2

The Tennessee Medical Malpractice Reporting Act found at Tenn. Code Ann. §§ 56-54-101, et seq. went into effect on January 1, 2009 and replaced statutes regarding similar previous reporting requirements. Bold the old and new statute require that lawyers report all medical malpractice settlements and judgments obtained in calender year 2008.

The Act requires the report to be filed with the Department of Commerce and Insurance offices on or before March 1 of each year. Since March 1 falls on a weekend, the report will be due March 2nd.

The new medical malpractice forms and instructions for the 2008 calendar year can be found at the Department of Commerce and Insurance’s web site. That site is http://www.state.tn.us/commerce/insurance/medExpRpt.html.

February 3, 2009

Invasion of Privacy – Wife vs. Husband

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

Jeffrey surreptitiously installed video equipment in the bedroom of the marital home (where Jeffrey may or may not have been living, depending on whom one believed), including a motion sensing optical eye in the headboard of the bed and a camera concealed in an alarm clock. His wife Cathy learned of the activities and sued her husband for invasion of privacy.

The tape that Cathy was able to get her hands on contained nothing of a demeaning nature. She could not prove that Jeffrey shared the results of his taping activities with anyone else.

In the divorce action filed by Jeffrey Cathy was awarded damages ($22,500) for invasion of privacy.

February 2, 2009

Ruining a Deposition

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

Evan Schaeffer at The Trial Practice Tips Weblog has started a three-part series titled "15 Ways to Ruin a Deposition." Here is his first post on the subject.

The first tip? Deposing someone who doesn’t need to be deposed at all.

February 2, 2009

Insurance Policies Limits Are Not Discoverable UPDATED

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

The Tennessee Supreme Court has just ruled that liability insurance policy limits are not discoverable in typical personal injury and wrongful death cases in Tennessee.

Unlike the vast majority of states, our TRCP 26 does not mandate disclosure of limits. The Court ruled that insurance policy information " is not subject to discovery under Tennessee Rule of Civil Procedure 26.02 because it is neither admissible nor does it appear to be reasonably calculated to lead to the discovery of admissible evidence."

On the bright side the Court said this:

February 1, 2009

February 2009 Tennessee Trial Law Report

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

The February 2009 edition of the Tennessee Trial Law Report is at the printer and will be mailed to subscribers in the next day or two.

This edition includes a summary of 24 different cases addressing various aspects of the law of torts, civil procedure, evidence and trial as decided by Tennessee appellate courts between December 15 and January 15.

The newsletter also includes (a) Part 2 of my three-part article of the law of motions In limine; and (b) a summary of the status of 25 cases of interest to tort lawyers that are pending before the Supreme Court of the United States and the Supreme Court of Tennessee.

January 29, 2009

When Winning A Case Costs Your Client Money

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

The goal of lawyers who represent plaintiffs in personal injury and wrongful death lawsuits is to help the client. But sometimes the receipt of proceeds from a lawsuit can actually cost your client money.

How can that be? If your client is receiving Supplemental Security Income (SSI) and the settlement results in your client having more than $2000 in the bank your client loses his or her SSI payments. More importantly, people who receive SSI usually receive Medicare benefits – and the loss of SSI for people under 65 will result in a loss of Medicare benefits. So, you may "win" the case for your 45 year old previously disabled client and put $50,000 in her pocket, but without appropriate planning she will lose her SSI benefit and her health insurance. If she has a significant health issue while she is without insurance, she may end losing not only the balance of her personal injury settlement but also whatever she had before the litigation started.

What is a lawyer to do? First, learn whether or not your client receives SSI and Medicare. Second, understand how receipt of settlement proceeds will impact those benefits. Third, determine if there is an appropriate way to structure the receipt of money to preserve the benefits. Fourth, if there is not a way to do so, make sure your client understands that the settlement will result in a loss of government benefits before your client agrees to accept a settlement proposal.

January 29, 2009

Yet Another Opinion on the Law of Expert Testimony

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

The Tennessee Supreme Court has issued another opinion about expert testimony, this one concerning the ability of a family practice doctor to testify about a criminal defendant’s ability to form the required mental state to commit a crime. The Court ruled that the expert was qualified to give such an opinion and that it was error to exclude his testimony.

The case is State v. Ferrell, No. M2005-02552-SC-R11-CD (Tenn. 1/29/09). Read about last opinion of the Court on expert testimony here.

January 27, 2009

Rule Changes

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

The Tennessee Supreme Court has adopted several changes to the rules of civil procedure, evidence and appellate procedure. By orders dated earlier this month, the Court adopted the recommendations of the Rules Commission about the changes that were necessary.

The changes now go to the General Assembly for its review, where they can be passed or defeated but not amended. Of course, the Court can always withdraw one or more rules if passage of the entire package is threatened by a rule change the Legislature does not like.

Here are the relevant orders.

January 23, 2009

New Edition of Tennessee Law of Comparative Fault

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

In 1997, five years after the adoption of comparative fault in Tennessee, Donald Capparella and I wrote a book called Tennessee Law of Comparative Fault..

Five years later our friend John Wood joined us for the second edition of the book, and West Publishing Company took over the printing and distribution of the book.

Another 5 or 6 years passed, and last fall we completed the 3rd edition of the book. The editing and printing has been completed, and the book is now available for purchase from West.

January 23, 2009

New Tennessee Supreme Court Opinion on Admissibility of Expert Testimony

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

The Tennessee Supreme Court has just released an opinion reversing the ruling of a trial judge who excluded the testimony of a sleep expert in a criminal case. The defendant alleged that he did not have the criminal intent to commit sexual acts with his stepdaughter because he was asleep at the time and was not aware of what he was doing. The expert diagnosed the defendant with sleep parasomnia.

The opinion contains a comprehensive summary of the law of admissibility of expert opinion testimony in Tennessee. Of course, it will be important in future criminal and civil cases.

The case is State v. Scott, M2007-02024-SC-S09-CO (Tenn. 1/23/09). The opinion was authored by Justice Koch. Read it here.