Day on Torts

October 24, 2008

Twombly – What it Means.

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.

October 11, 2008

A Comment About My SVMIC Post – And My Response

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

Last week I wrote a post called “SVMIC Rate Increase – NOT.” The post explained that SVMIC had not raised its insurance rates for its owner-doctors in 2008. Read the entire post here.

I then received this comment from Tom:

What’s wrong with making a profit? I am sure as a business owner that is your goal as well. Have you reduced the rates to your clients or decreased your contingency % this year (or in a year that you had large profits or extensive reserves)? While you may not like SVMIC’s clients or practices, they appear to be a well run company. Well-run company’s [sic] make profits. Poorly-run company’s [sic] get bailed out by the government.

October 10, 2008

Lawyers Want Less Stress, More Personal Time. Big Surprise

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

The folks at Robert Half Legal did a survey of 300 attorneys among the largest law firms and corporations in the United States and Canada. All respondents had at least three years of experience in the legal field.

Apparently, lawyers were asked, “If you could change one aspect of your job as a lawyer, which one of the following would it be?” an article says the responses were as follows:

Decreased job stress		31%
Less hours at work or more personal time		30%
Accelerated career growth		14%
Greater professional autonomy		5%
Increased on-the-job training		3%
Higher salaries/compensation		2%
Other		5%
Nothing		8%
Don’t know		2%
		100%

One of Robert Half Legal’s conclusions after reviewing the survey: "When it comes to retaining top legal talent, less stress and fewer hours on the job may matter more than compensation."

OK – that is probably true. What would be much more helpful is to know what amount of pay decrease lawyers willing to accept to get less stress and more free time. For example, 30% less pay for 30% less work? No employer in its right mind would accept that deal under ordinary circumstances.

October 9, 2008

SVMIC Rate Increase – NOT

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

Did you hear about the State Volunteer Mutual Insurance Company rate increase? No, you didn’t – because it didn’t happen.

Typically the media gets a press release from SVMIC saying that insurance is increasing X% and we hear from the TMA that the world is coming to come to an end as a result of it.

This year, nothing. Recall of course that the inflation rate in 2007 was close to 3% and this year it is running over 4%. The health care inflation rate is almost double the normal inflation rate. Thus, is would be reasonable to assume rates would increase every year.

October 6, 2008

E-Discovery Resource

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

Kroll Ontrack has a searchable list of e-discovery cases from around the nation.

To access the list, click here.