Day on Torts

March 19, 2009

Pleading With Particularity

The rules of civil procedure in Tennessee ordinarily require that a plaintiff make a "short, plain statement.." There is an exception – Rule 9 of the TRCP requires pleading with particularity when fraud or mistake are alleged.

Nothwithstanding the general rule, some people believe that more is better. Here is an example, from a real complaint in a real case:

Plaintiff was operating said vehicle in a safe and prudent manner, lawfully and under conditions commensurate with road and weather conditions on or about January 1, 2009, on Highway X in Some County, Tennessee, when Plaintiff fell asleep and drove off the roadway. Upon exiting the roadway, the vehicle came to a sudden stop when it collided with a culvert along the side of the roadway. The vehicle was equipped with airbags which did not deploy in the accident.

March 18, 2009

Free Research!

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

Are you familiar with JD Supra? It is a website that contains thousands of legal documents prepared by lawyers around the country. You can search by key word, locate a document relevant to your issue, and use to short-cut your research time.

For example, here is a brief written on behalf of a plaintiff who was opposing a motion by a defendant in a civil case to stay discovery while criminal charges were pending against him for the acts that also gave rise to the civil suit.

March 17, 2009

New Rules Adopted by General Assembly

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

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.