Day on Torts

November 1, 2008

Important Summary Judgment Case Released

The Tennessee Supreme Court released its decision in Hannan v. Alltel Publishing Company and has affirmed Judge Susano’s reversal of summary judgment in favor of the defendant.

The court, by a 4-1 margin, re-affirmed its decisions in Byrd, McCarley and Blair and held

a moving party who seeks to shift the burden of production to the nonmoving party who bears the burden of proof at trial must either: (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element of the claim at trial.

October 29, 2008

PDF Portfolios

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

I have been doing some reading about Adobe Acrobat recently and came across this post about organizing documents using PDF Portfolios. I have not tried this method of document organization and, I confess, will probably ask one of our paralegals to look into it for our firm rather than attempting to do so myself.

However, I thought I would share the post to (a) see what experience any of you have had with this method of document organization or (b) give you the opportunity to experiment with it.

This original post is a two-part post. I will post the second segment when it appears.

October 28, 2008

“Hospital Compare” Website

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

The U.S. Department of Heath and Human Services has a website that delivers information on how well hospitals care for patients with certain medical conditions or surgical procedures, and the results of a survey of patients about the quality of care the patients received during a recent hospital stay.

The site is here.

October 27, 2008

Information on Doctors

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

The Federation of State Medical Boards has a website that allows you to order professional information on physicians and physician assistants. The reports include infomoration about disciplinary sanctions, education, medical specialty, licensure history and locations. The cost of each report is $9.95.

Go the this site to place an order.

Limited information on Tennessee doctors (and other licensed health care providers) can be obtained for free at this site.

October 24, 2008

Twombly – What it Means.

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

Why should you care about the decision of the United States Supreme Court in Bell Atlantic Court v. Twombly , 127 S. Ct. 1955 (2007)?

Because it changed the rules of pleading in federal court and, because Tennessee looks to interpretations of the federal rules to interpret its own similar rules, it will be raising its head in Tennessee state court.

What is the change? Most of us have assumed that a complaint need only contain "a short plain statement of the claim showing that the pleader is entitled to relief and that, at the motion to dismiss stage, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41 at 45–46 (1957); Smith v. Lincoln Brass Works, 712 S.W.2d 470, 471 (Tenn. 1986).

October 22, 2008

FRE Rule 502 Becomes Law

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

The Congress has approved changes to the Federal Rules of Evidence, including the addition of Rule 502 dealing with the waiver of attorney-client privilege and work product protection as a result of inadvertent or intentional disclosure to another party.

Click here for the text of the rule as it appears in the Congressional Record (9/8/2008).

Thanks to Discovery Resources and Dennis Kiker of Fois Consulting for alerting me about the adoption of this rule.

October 20, 2008

New Medical Negligence Certificate of Good Faith Form

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

The Administrative Office of the Courts has released the form that must be filed by plaintiffs in medical negligence cases (and by defendants who allege fault of another health care provider). Both forms are available here.

In general, a plaintiff must file the certificate within 90 days after filing suit.

My partner Rebecca Blair had an article about the new statute published as the cover story of the Tennessee Bar Journal. The article can be viewed here.

October 17, 2008

AAJ Issues Report About Federal Preemption

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

Yesterday, AAJ released a new report on complete immunity preemption titled, Get Out of Jail Free: A Historical Perspective of How the Bush Administration Helps Corporations Escape Accountability. This report reveals how in a stealth effort coordinated at the highest levels of the Bush administration, federal agencies were repeatedly ordered to usurp state law and undermine consumer protections. To date, seven federal agencies have issued over 60 proposed and final rules with preemption language in the preamble and claimed the authority to provide immunity from state law.

October 17, 2008

Suit Against God Dismissed

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

Associated Press has reported that Nebraska State Senator Ernie Chambers’ lawsuit against God has been dismissed for lack of service of process. The suit sought a permanent injunction to prevent God from committing acts of violence such as tornadoes and earthquakes.

Just think, if God was a Tennessee doctor the suit could have never been filed because God could have never been served with notice as required under the new statute.

It just goes to show you: membership (in the TMA) has its advantages.

October 15, 2008

Race and Damages

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

Here is a fascinating article from the New York Law Journal about an opinion by Judge Jack B. Weinstein objecting to a defendant’s use of race-based statistics on life expectancy to reduce a damage award in a quadriplegia case.