Day on Torts

August 17, 2008

2009 Justice Programs Schedule

Many of you know that former Tennessee Supreme Court Justice Penny White, former Tennessee Court of Criminal Appeals Judge Joe Riley and I have a seminar company called "Justice Programs." We offer a 15 hour CLE program each Fall that permits attendees to meet all mandatory CLE obligations for the entire year and, more importantly, gives civil trial practioners the opportunity to gain valuable information for their practice.

Here is the outline for our course in 2008:

Tort Law / Comparative Fault – John Day

August 13, 2008

A Res Ipsa Case to Remember

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

Tennessee permits a plaintiff to rely on the res ipsa loquitor doctrine in medical negligence cases when appropriate under the facts. For the most recent Tennessee case on the issue see Flowers v. H.C.A. Health Care Services of Tennessee, Inc., 2006 WL 627183 ((Tenn. Ct. App. Mar. 14, 2006).

But take a look at this case out of Missouri. It holds that a plaintiff can rely on res ipsa in a case where the plaintiff got an E. coli infection after back surgery.

The Missouri Court noted that "Plaintiffs have alleged that all defendants were in control or had a right of control of the instrumentalities from which her infection was obtained, that the infection in the surgical site itself is one that does not occur in the absence of negligence, that the defendants all were negligent, that she was unconscious and has no knowledge of how the infection occurred, and that the defendants have superior knowledge of how it occurred." The plaintiff had an expert to support this position but who could not say how the infection actually occurred.

August 11, 2008

Try the Case? Or Settle the Case?

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

The age old question: should I try it or accept the offer the defense has made?

This article in the New York Times reports on an article that will appear in the September edition of the Journal of Empiral Legal Studies on the subject on settling cases. The article will address a study of 2,054 cases that went to trial from 2002 to 2005. The bottom line: "“The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more,’ said Randall L. Kiser, a co-author of the study and principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions. "

The NYT article goes on to say as follows: "Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered."

August 8, 2008

SVMIC Claims Evaluation Document

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

How does SVMIC evaluate claims? Here is what they tell their insureds.

August 7, 2008

Notice Requirement in Slip and Fall Cases

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

In slip and fall cases in Tennessee, one must either prove that the defendant created the condition or knew or should have known about the condition. The latter may be proved by showing a pattern of conduct, a re-occurring incident, or a general or continuing condition indicating the dangerous condition’s existence. Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004)

But Alaska has a much more pro-plaintiff rule in grocery (and presumably all retail) store cases. Its Supreme Court recently ruled that "actual or constructive notice of a hazardous condition is not an element of a prima facie case in an action against a grocery store owner in a slip-and-fall case."

Here is a brief summary of the Court’s ruling and rationale:

August 5, 2008

SVMIC Speaks on Effect of New Malpractice Legislation on Rates

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

SVMIC’s position on how the new statute making it more difficult to sue physicians will impact what doctors pay for medical malpractice insurance:

"Regarding the effect of this reform on your professional liability insurance, it will be difficult to quantify what, if any, rate changes are a direct result of the reform. A multitude of factors affect the filing of suits and awards in medical malpractice cases, therefore it may be a period of time before any effect will be realized. We congratulate the TMA on their accomplishment after many years of hard work for reform."

Is anyone surprised by this?

August 4, 2008

Back (Again)

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

Ok – I know I have not been posting lately. I spent 8 days in Canada fishing and returned on Saturday night.

I am now back to work and will be back on a normal blogging pattern this week.

Thanks for coming back to the site.

July 28, 2008

A New Attack on the Contigious State and Locality Rule?

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

The Arizona Court of Appeals has ruled unconstitutional a state statute that imposed certain requirements on expert witnesses in medical malpractice cases. The statute required that experts be board certified in the same specialty as the defendant and mandated that the expert have practiced (or taught) that same specialty for the year prior to their testimony.

The Court ruled that it was the job of the courts to make rules relative to matters of procedure and that the legislature could not infringe on the role of the courts.

The case is Seisinger v. Siebel, No 1 CA-CV 07-0266 (AZ. Ct. App. June 17, 2008). Read it here.

July 24, 2008

Flax Opinion Released

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

The Tennessee Supreme Court has released the opinion in Flax. Stated briefly, the Court affirmed the dismissal of the NIED claim and re-instated the remitted punitive damages for the wrongful death claim.

For the first time in my memory, the TSC released 4 opinions on the case. Get the links to all of the opinions here. Justice Holder wrote the majority opinion.

July 22, 2008

Sexual Misconduct Claims Against Therapists

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

Did you know that Tennessee has a specific statute addressing sex abuse claims against therapists?

The "Therapist Sexual Misconduct Victims Compensation Act" is set forth in T.C.A. Sec. 29-26-201 et seq. A "therapist" is defined as "any person who performs therapy regardless of whether the person is licensed by the state." "Therapy" is also a defined term, and includes marital counseling, substance abuse treatment, family counseling, and other treatment. The statute of limitations is the most generous of any personal injury claim in Tennessee.