Day on Torts

January 27, 2009

Rule Changes

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.

January 21, 2009

More From Paul Luvera

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

I know that I have had several posts in the past few months that referenced the work of Paul Luvera, a highly-regarded plaintiff’s lawyer from Seattle. Here is another one – this time on the subject of settlement forms.

Why do I cite his work? Quite frankly, I will cite any good lawyer’s work if I think it will be of interest to the readers of this blog. The whole idea behind is blog is to share information, and not just information from my own head. I am thrilled that great lawyers like Paul are willing to share what know, and am happy to pass his knowledge on to you.

January 16, 2009

Off Topic – Bushisms

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

Jack Weisberg kept up with George W. Bush’s verbal slip-ups during the past 8 years.

It was a full-time job.

This article contain’s Weisberg’s list of the top 25 Bushisms.

January 16, 2009

Open Note to Airplane Crash Lawyers

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

Please don’t rush to New York and file a lawsuit over yesterday’s crash.

There is no reason to inject a lawsuit into the middle of the celebration over the wonderful outcome from what could have been a horrific tragedy.

So, don’t embarrass plaintiff’s lawyers or the legal system by an immediate filing of suit. Take a deep breath. Discover some facts. Talk to potential defendants and try to work something out before running to the courthouse and trying to grab the spotlight.

January 15, 2009

Making Surgery Safer

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

There is a great article in today’s New York Times titled "Simple Checklist Makes Surgery Safer."

An excerpt: "a year after surgical teams at eight hospitals adopted a 19-item checklist, the average patient death rate fell more than 40 percent and the rate of complications fell by about a third, the researchers reported.’

The Times article is based on an article in the January 14, 2009 edition of the New England Journal of Medicine, which reports on a research project conducted by the World Health Organization.

January 15, 2009

NIED Claims

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

The January 2009 edition of the Tennessee Bar Journal includes my quarterly column on tort law. This column is titled "NIED Claims after Flax and Eskin."

For some reason, the online version of the article has some missing words and other problems, but it includes the important stuff.

January 14, 2009

Still More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary

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

I know – this is the third posting about the 2007-08 Annual Report of the Tennessee Judiciary. I can’t help myself – I am fascinated by this kind of data.

This falls in the "can you believe this" category?

There were about the same number of DUI charges filed in circuits court in Tennessee last year as there were tort damage lawsuits (11,000). There were more divorces and more burglary charges filed than tort lawsuits ,
Williamson County did not have a single medical malpractice lawsuit filing during the fiscal year ending June 30, 2008.
Montgomery County (Clarksville) had only 7 medical malpractice filings and Wilson County (Lebanon) had only 3. Hamilton County (Chattanooga) had a mere 17 med mal complaints filed and Madison County (Jackson) had but 5 filed.
As mentioned in an earlier post, there were 537 med mal cases filed in the entire state. There are 6,000,000 people in Tennessee. Statistically, about 2000 people died from medical malpractice in Tennessee during that period, and many more were injured.
Believe it or not, there were more kidnapping filings (735) than there were medical malpractice filings (537).

Here is the report.

January 13, 2009

More Statistics From the 2007-08 Annual Report of the Tennessee Judiciary

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

The 2007-08 Annual Report of the Tennessee Judiciary also has some interesting statistics on appeals. Here are some of the highlights:

There were 793 Rule 11 applications filed during the fiscal year. ( A Rule 11 application is a request for the Tennessee Supreme Court to hear a discretionary appeal.) How many were granted? 48.
Number of certified questions accepted by the Court in the fiscal year? 3
Total number of Court of Appeals opinions released during the fiscal year? 753 (more than one per week per judge).
Petitions to rehear filed in the Court of Appeals? 101 Number granted? 15
Total number of Rule 9 (interlocutory appeal) and Rule 10 (extraordinary appeal) applications filed in the Court of Appeals? 106 Number granted? 22
Total number of Rule 9 and Rule 10 applications filed in the Supreme Court? 50 Number granted? 6