Day on Torts

December 24, 2008

The Politics of Fear in an Effort to Achieve Tort Reform

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?

December 18, 2008

Tennessee Nursing Homes Rank At the Bottom

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

According to the Tennessean. Tennessee nursing homes rank No. 48 (beating only Louisiana and Georgia), according to new survey information out from the Centers for Medicare and Medicaid Services. Less than 7% of the nursing homes in Tennessee were rated above average.

The paper reports that

"[o]f the 40 nursing homes listed in Davidson, Rutherford, Sumner, Williamson and Wilson counties, 11 fell well below average. Three of those — Briley Nursing and Rehabilitation Center in Whites Creek, Greenhills Health and Rehabilitation Center in Nashville and Cumberland Manor Nursing Center in Nashville — not only received the poorest marks for overall quality, but also received the lowest possible score in every category."

December 18, 2008

My Grandmother’s Birthday

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

On March 24, 2006 I wrote about the death of my grandmother, Milda Heath, at the age of 97. Today is her 100th birthday.

She was a wonderful grandmother, mother, teacher and citizen. I miss her.

December 17, 2008

Summary of New FRE 402

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

Here is a summary of FRE 502 which came into effect on September 18, 2009. The rule – which addresses the attorney client privilege and work product doctrine – is intended to provide increased clarity in this confusing area of the law.

The author explains that "[t]he rule establishes a presumption against subject matter waiver, resolve the issue of inadvertent disclosure, provides for confidentiality orders and supports party agreements, among other issues. "

Thanks to Federal Evidence Review.

December 16, 2008

SCOTUS Rules for Plaintiffs in “Light” Cigarette Case

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

The United States Supreme Court has ruled for the plaintiffs in a case involving an assertion of federal pre-emption in litigation involving whether selling "light" cigarettes was deceptive.

As pointed out in this article in the New York Times,

"[t]he question before the court was not whether use of the term “light” amounted to fraud. It was, rather, whether plaintiffs should be allowed to sue at all given the federal Cigarette Labeling and Advertising Act, which required tobacco companies to place rotating warnings on their packaging and advertising."

December 15, 2008

Chamber of Commerce Wants to Preserve Right to File Suit

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

That’s right. The Chamber of Commerce believes in the right to file suit if you have been aggrieved by the conduct of another.

As long as you are a car manufacturer and want to complain about new laws limiting greenhouse gas emission standards.

Read about the Chamber’s latest hypocrisy here.

December 13, 2008

A Bad Day

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

Professionally speaking, it is hard to have a worse day than having a United States Supreme Court justice say this: " “I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.”

That is what Justice Souter said to Jennifer Smith, a lawyer in the Tennessee Attorney General’s Office.

Preparing Clients for Events at Trial

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

Ten days or so ago I included a post from Paul Luvera’s blog about the importance of using checklists for taking the deposition of an eye witness.

Here is another post from Paul. This time he is sharing a checklist on information you should share with your client about the trial process. It includes suggestions for how the client should act during the trial and how to act during cross-examination.

Thanks again, Paul.

December 10, 2008

New Trucking Regulations Means Increased Public Safety

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

The Federal Motor Carrier Safety Administration has issued an amend to its regulations to require interstate commercial driver’s license (CDL) holders subject to the physical qualification requirements of the agency’s regulations to provide a current original or copy of their medical examiner’s certificates to their State Driver Licensing Agency (SDLA). The new regulations also require the SDLA to record on the Commercial Driver License Information System (CDLIS) driver record the self certification the driver made regarding the applicability of the Federal driver qualification rules. The rule is effective January 30, 2009.

The goal of the new regulations is to help to prevent medically unqualified drivers from operating covered vehicles on our highways by giving the states the means of identifying CDL holders who are unable to obtain a medical certificate and to deter the use of false certificates.

Here is a copy of the new regulations.