Day on Torts

January 9, 2009

Annual Report of the Tennessee Judiciary

The Tennessee Supreme Court has just released the 2007-08 “Annual Report of the Tennessee Judiciary.” It includes data for the 2007-08 fiscal year. Here is some of the information revealed in the report:

There were 537 medical malpractice cases filed during the fiscal year. That is down almost 10% from the 584 filed during the previous fiscal year. There were dispositions of 462 of those cases but only 20 of them actually went to trial.
There were 11,171 personal injury and wrongful death cases filed.
There were 506 personal injury and wrongful death cases tried in fiscal 2007-08. Of those, there were 246 jury trial and 260 non-jury trials. Last year there were 590 such trials, and 289 of them were jury trials. Thus, jury trials were down about 15%.
In those 506 trials, there were damage awards in 237 ( a little over 45%). Of course, the mere fact that there was a damage award does not mean that the plaintiff "won" the case because the plaintiff may have had an offer greater than the judgment awarded.
The total damages awarded in the state increased over the previous fiscal year by over 25% to slightly over $58,000,000. (Included in that amount is a judgment of over $17,000,000 awarded in a non-jury trial in Putnam County against 2 individuals. If that judgment is collectible I will eat the Nashville phone directory.)
There were 13 judgments totaling $1,000,000 or more in the entire stated ruing the entire fiscal year. No county had more than one $1,000,000 verdict.
There were 191 judgments for the plaintiff less than $100,000.
Shelby County had 36 jury trials in personal injury and wrongful death cases during the fiscal year. Davidson County had 33, Hamilton County had 22, Madison County had 10 and Montgomery County had only 5 jury trials. Knox County had the highest number at 44. District 17 (Bedford, Lincoln, Marshall and Moore counties) did not have a single personal injury or wrongful death jury trial (and they had only 3 non-jury trials).
The "average" amount awarded to a successful plaintiff was about $242,000. This is the arithmetical mean, greatly influenced by what I am quite confident is the $17,000,000 Putnam County judgment that cannot be collected. If one throws out that high verdict and the lowest verdict (assume the low verdict is $10,000 – the exact number is unknown) the arithmetical mean drops below $200,000. The median award would be somewhere under $100,000 (because about 80% of the awards were under $100,000) but we do not have enough data to determine the exact number.

January 9, 2009

New Tennessee Trial Law Report Available

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

Are you a subscriber to Tennessee Trial Law Report – Tort Law Edition? The January 2009 issue is now available.

The January edition contains Part One of a three-part article on motions in limine as well as a listing of 29 cases currently pending before the Tennessee Supreme Court or the United States Supreme Court that are of interest to tort lawyers.

The January edition also contains a summary of the 20 Tennessee appellate court decisions issued between November 16 and December 15, 2008 that addressed some aspect of the law of torts, civil procedure, evidence, and trial. The significance of each opinion is ranked to save you reading time.

January 7, 2009

Car Safety Data

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

The Department of Transportation has a site dedicated to car safety. The site gives information about safety recalls, defect investigations, and early warning reports.

Want to learn more? Go here.

January 5, 2009

Medicare Subrogation

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

Plaintiff’s lawyers: do you want to have the hell scared out of you? Read this article by Rick Swedloff on Medicare subrogation entitled "Can’t Settle, Can’t Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries." The article appears in Volume 41.2 of the Akron Law Review.

[A 2003 amendment to the Medicare Secondary Payor Act, which grants rights to Medicare in personal injury cases where Medicare pays benefits] significantly affects the ability of Medicare beneficiaries to bring or settle individual tort claims, the incentives for attorneys to represent Medicare beneficiaries in individual and mass tort litigation, and the tort system generally. Because of this – and despite the fact that courts and academics have largely ignored this amendment – attorneys from around the country have sounded alarm bells since the government first took the litigation position now reflected in the MSP. Lawyers have raised serious concerns about their ability to bring and settle individual and mass tort litigation under the MSP’s harsh liability rules. [Footnotes omitted.]

December 31, 2008

Fee Caps – And the Harm to the Patient that Results

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

There is a lot of talk about capping fees in medical malpractice cases. Fees are already capped, of course, at one-third of the recovery, but the health care industry wants further limitation on fees charged to plaintiffs in successful cases.

Why? Because they’re not stupid. They understand that a lower fee cap means that fewer cases will be filed and those that are filed will be filed by less qualified lawyers. Why? Because lawyers generally will not file cases when they cannot earn a fair return for their efforts on the case. And more qualified lawyers will file still fewer cases because they can earn a better return on other types of work. Reduced filings mean reduced indemnity payments and defense costs, which means more profits for insurers, which presumably will lead to reduced insurance rates. Filings by less qualified lawyers means more defense wins, which means more profits for insurers, which once again will presumably lead to reduced insurance rates.

What about statutory limitations on fees paid to defense counsel? Wouldn’t that save defendant’s money? Of course it would, but that would affect the quality of the lawyer who is willing to defend malpractice cases. A very good or great lawyer will not be willing to work for below-market rates.

December 31, 2008

Law Review Article on Police Chase Cases in the 6th Circuit

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

Do you have a Sec. 1983 lawsuit for injuries to a bystander arising out of a police chase? Are you thinking about filing one? Are you defending one?

If the answer to any of these questions is "Yes," I encourage you to read "When Innocent Parties Are Injured or Killed in High-Speed Pursuits, What Police Conduct Sufficiently Shocks the Conscience to Allow Recovery?" by Anna M. Krstulic. The article appears in the Vol. 47, No. 3 of the Washburn Law Journal (Spring 2008). Here is the conclusion she reached after studying the law in this area :

Given the high statistics of deaths and serious injuries that result from police pursuits, the Supreme Court should revisit the issue of federal liability under § 1983 to define a workable standard. Since both intent to harm and deliberate indifference can “shock the conscience,” courts must evaluate the totality of the circumstances in each case to determine which standard is appropriate. Police officers should be held accountable for violating pursuit regulations, and municipalities should be held accountable for failure to train their police officers. The governmental authority that police exercise in conducting pursuits must have clearly defined constitutional limitations. As one commentator noted, “[w]hat is shocking is the continued willingness of many officers to engage in unwarranted pursuits in the face of widespread awareness in the police community itself of the likelihood of tragic consequences.” [Footnotes omitted.]

December 29, 2008

Practice Tip – Professional Services Sales Tax on Lawyers?

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

From time to time over the years there has been talk about imposing a sales tax on professional services. One cannot help but wonder whether there will be an effort to impose such a tax to help solve the budget problem facing our state government.

Like all sales taxes, a tax on professional services should be paid by the client. However, to make that absolutely clear to the client, you may wish to include a paragraph similar to the one set out below in your fee agreement.

Possible Tax on Professional Services. In addition to the expenses listed above, in the event that the State of Tennessee imposes a tax on legal services (legal services, expenses of representation, or both), Client agrees to pay any such tax that is assessed against Attorneys. No such tax has been imposed by the State of Tennessee at this time, and Attorneys will inform me if such a tax is passed by the Legislature and signed in to law by the Governor. If the contingent fee option is chosen, any such taxes will be deducted from the recovery after attorneys’ fees have been calculated and deducted. If the hourly fee option is chosen, the applicable taxes will added to Client’s monthly bill.

December 25, 2008

Chamber of Commerce Lobbies for Protection from Lawsuits

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

Here is the text an December 20, 2008 article on the CBS News website about the efforts of the U.S. Chamber of Commerce to take advantage of the opportunity created by the world’s financial problem to seek legal protection for wrongdoers. Thanks to Suzanne Keith at TAJ who forwarded it to me.

Made in America: Corporate Gall

Dec. 20, 2008

December 24, 2008

The Politics of Fear in an Effort to Achieve Tort Reform

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

Insurance companies know that they have little credibility in the fight over access to the courthouse. This is particularly true in the medical malpractice area, where the evidence in Tennessee demonstrates that (a) doctors and hospitals win over 96% of jury trials; (b) professional liability rates, adjusted for the medical inflation rate, have been more or less flat for over 20 years; (c) the average settlement is $256,100 (for calendar year 2007); and (d) $1,000,000 verdicts are extremely rare.

But that doesn’t sell insurance. And it certainly doesn’t cause doctors to jump on the tort reform bus.

What does? Fear. And it was an effort to create fear that gave rise to this statement by State Volunteer Mutual Insurance Corporation in a publication to their insureds:

December 22, 2008

Will Budget Cuts Hurt Our Judiciary (And Tennesseans)?

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

The state’s law libraries are closing their doors to lawyers and other citizens. The Administrative Office of the Courts is cutting programs and staff. Appellate court law clerks are fearing the loss of their jobs.

Tennessee budget problems are hitting the judiciary and it remains to be seen what impact the financial cuts have on civil jury trials. In New Hampshire, civil and criminal jury trials are being eliminated for an entire month. Florida has cut 280 clerks, lawyers and staff members, and if another 10% budget cut is made civil jury trials will be suspended, according to one judge.

Will the budget crisis force the state to take a hard look at judicial system? There are some tough questions that will be asked. Do we need two sets of clerks – chancery and circuit? Should the Tennessee Supreme Court be given the power to administer the court system, allocating resources across the state as needed?