Day on Torts

March 26, 2008

Nursing Home Relief Act Pulled By Industry After Release of Tort Report

Tennessee ranks 12th of the 50 states on the U.S. Tort Liability Index. The list measures the tort climate from the standpoint of the business and insurance community, so a rank of "1" is a pro-business, pro-insurance company state and a rank of "50" is that dark, dreary place inhabited by jurors who are anti-gun, anti-life, pro-child pornography, tree-hugging communists (hereinafter referred to as "liberals") and the greedy, scum-sucking trial lawyers who love and manipulate them.

North Dakota ranks first. Florida ranks fiftieth. North Carolina, Virginia, and Mississippi each have a higher rank than Tennessee; the other southern states rank lower.

In terms of "litigation risks" Tennessee has the best pro-industry ranking in the country (doesn’t that give you a warm, fuzzy feeling?).

March 24, 2008

Use of Demonstrative Aids At Trial-Revisted

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

Did you know that there was a statute that permits you to use demonstrative aids during closing argument (and probably during opening statement as well)? Here is a statute for your trial notebook.

T.C.A. Sec. 20-9-303 permits a lawyer "to use a blackboard, models or similar devices, also any picture, plat or exhibit introduced in evidence, in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury…." The statute prohibits a lawyer from making an argument "in writing" that could not properly be made orally.

I believe that Powerpoint constitutes a "similar device" in the 21st century. Therefore, if you get an objection like "she can’t use that Powerpoint presentation – its not in evidence" your argument is "I am permitted to illustrate my contentions under Sec. 20-9-303."

March 21, 2008

Case Selection

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

I have written on the subject of case selection on this blog in the past. Here is a link to an article on the subject that I had published recently in Trial magazine. (Available only to AAJ members).

I gave a speech on this subject recently in Memphis and generally received excellent reviews. However, one attendee blew me out of the water, basically saying that I was trying to turn the law into a business.

Let me respond here (and I have no choice, since the evaluator was anonymous).

March 19, 2008

South Carolina Opens Door to Negligent Hiring Claim

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

The South Carolina Supreme Court has ruled that a defendant employer may not avoid a claim for negligent hiring, training, supervision, or entrustment by simply agreeing that it is vicariously liable for the actions of its employee.

In James v. Kelly Trucking Company, the Court said that just because a company is vicariously liable for acts of an employee does not mean that it cannot be liable for its own negligence. As the Court explained, "[a] plaintiff may, in a single lawsuit, assert many causes of action against a defendant. The considerations limiting a plaintiff’s available causes of action in the typical case are that the plaintiff must be able to demonstrate a prime facie case for each cause of action and that a plaintiff may ultimately recover only once for an injury."

The opinion also gives a nice summary of the common law of negligent hiring, training, supervision, or entrustment: "in circumstances where an employer knew or should have known that its employment of a specific person created an undue risk of harm to the public, a plaintiff may claim that the employer was itself negligent in hiring, supervising, or training the employee, or that the employer acted negligently in entrusting its employee with a tool that created an unreasonable risk of harm to the public. See Restatement (Second) of Torts § 317 (1965) (Cited with approval in Degenhart v. Knights of Columbus, 309 S.C. 114, 116, 420 S.E.2d 495, 496 (1992))."

March 18, 2008

State Found Liable For Beating on UT Campus

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

The Tennessee Court of Appeals has affirmed an en banc ruling of the Tennessee Claims Commission and ruled that the the State was liable for damages suffered by a college student as a result of being beaten after she left a parking garage on the University of Tennessee campus.

To reach that result, the Court first held that the McClung decision was applicable to the State of Tennessee. The Court then examined the evidence and determined that the plaintiff met the burden of proving that "(1) that there was a negligently created or maintained dangerous condition on state controlled real property; (2) the risk was foreseeable; and (3) that notice was given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures." Finally, the Court found that legal cause was present under the facts.

The decision is a nice reminder of what a plaintiff must prove to impose liability on a premises owner for failure to guard against criminal conduct by third persons. Read the opinion here.

March 13, 2008

Back from Trial

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

It’s over.

Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008. Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago.

Ginger was a diabetic who suffered from end-stage renal disease. She had several other health problems (pulmonary hypertension, obesity, sleep apnea, oxygen dependent lung disease, etc.) that resulted in a life expectancy of about 6.8 years. She was determined to be totally disabled two months before her death. Therefore, we were unable to make any claim for economic loss. We elected not to make a claim for funeral expenses or pain and suffering and sought damages for Jessie solely for loss of "love, society and affection" under Jordan v. Baptist Three Rivers Hospital.

March 13, 2008

2007 Counsel for Claimants Reports

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

To those of you who had a medical malpractice judgment or settlement in 2007: Please remember that the 2007 "Counsel for Claimants" reports must be completed and sent to the Tennessee Dept of Commerce and Insurance on or before April 1, 2008. Here is the website where you can download the form.

The purpose of gathering this data is to learn the truth about medical malpractice verdicts and settlements in Tennessee and the costs associated with medical malpractice litigation. This is the second year that attorneys for claimants have been required to share information with the state.

Here is a summary of the report for the 2005 calendar year:

March 12, 2008

Short Break Update

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

Well, it has been a longer break than I planned. The trial started on February 25 and went to the jury shortly before lunch yesterday, March 11. The jury actually started deliberations at about 12:45 and is returning to the courthouse for further deliberations today at 8:00 a.m.

Obviously, it would not be appropriate for me to discuss the trial while the jury is still out.

February 20, 2008

Short Break

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

This blog started three years ago this week. There have been 1175 posts totaling millions of words made to it. In the process I have learned in a great deal and I sincerely hope that this blog has helped you represent your clients.

I am taking a break for a couple weeks. I start a medical malpractice wrongful death trial on February 25 and I simply do not have time to post between now and the end of trial.

Trials are, well, trials – they are called that for a reason. Medical malpractice trials are a particular challenge, and medical malpractice trials with multiple defendants that take place out of town are all-consuming. Although I have been involved in the case from the start, Rebecca Blair has taken the lead on case and trial preparation to date. We argued motions in limine ten days ago so for the last three weeks a substantial percentage of my time has been devoted to this case.

February 18, 2008

Expert Witness Article

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

The Federation of Defense and Corporate Counsel has a magazine called the FDCC Quarterly. There are some good articles in the publication, and I think many of you would enjoy an article in the Spring 2007 magazine called "Scientific and Other Expert Testimony: Understand It; Keep It Out; Get It In."

The article is by Robert Kolar, a defense lawyer from Chicago.

This article is based on federal law, but as you know Tennessee’s standard for admissibility of expert testimony is generally more relaxed than that in federal court. Nevertheless, the article presents an insight into the minds of defense counsel on the issue of expert testimony.