Day on Torts

November 21, 2007

Court of Appeals Says Savings Statute Trumps Statute of Repose

The Tennessee Court of Appeals has held that the savings statute trumps the products liability statute of repose.

In Maino v. The Southern Company, Inc., d/b/a The Southern Company, et al., W2007-00225-COA-R9-CV (Tenn. Ct. App. NOv. 19, 2007) the Western Section of the Court of Appeals held that a products liability case brought under the savings statute was permitted to proceed even though the statute of repose expired during the savings period.

The Court said that "[p]ermitting a plaintiff to refile an action that originally was filed within the statute of limitations and ten-year statute of repose, non-suited, and refiled within the one-year period permitted by the savings statute does not frustrate the legislative intent of achieving a degree of predictability for the purposes of setting product liability insurance premiums. Unlike mental incompetency, the extension of time under the savings statute is neither unpredictable nor without limitation. Additionally, no surprise or hardship is worked on a defendant or its insurance carrier where actual notice of an asserted claim is had within the statutory period. On the other hand, the purpose and spirit of the longstanding savings statute is realized."

November 19, 2007

TSC Accepts Review of Railroad Crossing Case

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

Should a court ever determine, as a matter of law, that a plaintiff is fifty percent or more at fault? Should it ever do so when there is some evidence of fault of the defendant?

Those questions will be explored by the Tennessee Supreme Court in the coming months. The Court has accepted review of Martin v. Southern Railway Company, a railroad crossing death case. Judge Franks, joined by Judge Swiney, found that the plaintiff’s claims were barred as a matter of law. Judge Susano dissented, saying that a jury question was present.

Look for a decision in late Spring, 2008.

November 18, 2007

Book Updates Posted

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

Updates to A Handbook for Tennessee Tort Lawyers – 2008 have been posted on the book’s website. The updates are available in the "free updates" section of the site. To utilize this service, simply scroll down to the relevant chapter and section and click on it to see if there are any new cases in the relevant subject matter.

Book sales are brisk. Two good-sized firms who handle primarily personal injury work have purchased a copy for virtually every lawyer in the firm.

Recall that the book contains the leading Tennessee tort case on 233 subjects; here is a table of contents for that section of the book. The book also contains selected statutes of interest to tort lawyers and a complete set of the Tennessee rules of civil procedure, evidence and appellate procedure.

November 16, 2007

An Article from a Doctor Who Gets It

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

Read this heart-warming article by a doctor from Memphis as published in the November 12, 2007 Commercial Appeal.

Thanks to Lang Wiseman from Memphis for alerting me to the article.

November 14, 2007

Illinois Trial Court Strikes Down Caps

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

An Illinois trial judge has declared that caps on certain medical malpractice cases imposed by the Illinois Legislature violate the rights of medical malpractice victims.

An article in the Archives

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

An article in the Archives of Internal Medicine looked at closed malpractice claims to see what caused the errors made by medical trainees. A summary of the findings:

"Among 240 cases, errors in judgment (173 of 240 [72%]), teamwork breakdowns (167 of 240 [70%]), and lack of technical competence (139 of 240 [58%]) were the most prevalent contributing factors. Lack of supervision and handoff problems were most prevalent types of teamwork problems, and both were disproportionately more common among errors that involved trainees than those that did not (respectively, 54% vs 7% [P < .001] and 20% vs 12% [P = .009]). The most common task during which failures of technical competence occurred were diagnostic decision making and monitoring of the patient or situation. Trainee errors appeared more complex than nontrainee errors (mean of 3.8 contributing factors vs 2.5 [P < .001])." You can access the article here.

Thanks to the DC Metro Malpractice Blog for informing me about the article.

November 12, 2007

Discoverability of Insurance Policy Limits

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

In Tennessee, the Supreme Court has an advisory commission that recommends changes in the rules of civil procedure, evidence and appellate procedure. Proposed changes are circulated for public comment and then the court sends them to the legislature for approval. The legislature can only vote the rule changes up or down, it cannot modify them.

However, the legislature has persuaded the court to withdraw proposed changes to the rules on several occasions. The most frequent subject of objection has been a proposed change to Rule 26 of the Tennessee Rules of Civil Procedure which would permit the discovery of the existence and amount of liability insurance coverage. Insurance companies, primarily Tennessee Farmers Mutual Insurance Company, opposes disclosures of insurance information.

Now the Tennessee Supreme Court is going to get the opportunity to determine whether to permit the discovery of insurance information by way of case law. In Thomas v. Oldfield, No. M2006-02767-COA-R9-CV, (Tenn. Ct. App. Nov. 7, 2007) the intermediate court rejected a plaintiff’s effort to discover insurance information. The court held as follows:

November 9, 2007

TSC Issues Arbitration Decision

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

The Tennessee Supreme Court has ruled that an arbitration provision in a nursing home contract signed by a person who had a power of attorney to act on behalf of the resident is not void as against public policy. However, the court remanded the case to the trial court for a determniation of whether the inclusion of the provision was an unconscionable contract of adhesion.

Justice Holder wrote the opinion for the Court. Here is a summary of the holding:

"the agreement is governed by the Tennessee Uniform Arbitration Act and that the power of attorney authorized Daniel to sign the arbitration agreement on behalf of King. We also affirm the intermediate appellate court’s holding that the arbitration agreement is not unenforceable on the ground that a material term of the agreement is incapable of performance. We likewise affirm the Court of Appeals’ holding that the arbitration agreement does not violate federal law. We further hold that a pre-dispute arbitration agreement in a nursing-home contract is not per se invalid as against public policy. In addition, we affirm the intermediate appellate court’s holding that the agreement is not unenforceable on the ground that requiring King to sign an arbitration agreement breached a purported fiduciary duty owed to King by the defendants. We vacate, however, the Court of Appeals’ judgment insofar as it holds that the arbitration agreement is not an unconscionable contract of adhesion, and we remand for further proceedings on that issue. In light of our remand for further proceedings on the unconscionability issue, we also vacate the intermediate appellate court’s instruction to the trial court to enter an order compelling arbitration."

November 7, 2007

Conversations with Other Lawyers

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

Do you document substantive conversations with other lawyers? Once upon a time, it was unheard of to do so and some felt it was downright offensive. A lawyer can and should be trusted to stick by an understanding that is reached with another lawyer, the theory went, and to confirm a conversation in writing was a sign of mistrust.

Of course, there has always been and will always be lawyers who cannot be trusted. I know a few. You know a few. They are the scum of the profession, who thank God for the bottom-dwelling lawyers who steal from their clients (so the liars and cheaters can feel superior to someone).

Today, however, I think a quick note or email confirming a substantive conversation is a good thing – one that avoids the chance of innocent misunderstandings in the future. My view is that good lawyers no longer find such communications offensive and, indeed, I have found these lawyers are appreciative of the effort.

November 6, 2007

Thank You

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

My new book – Day on Torts: A Handbook for Tennessee Tort Lawyers – was delivered yesterday (November 5). It was promised for last week, but there were apparently some difficulties in the shipping process.

The project started about eight months ago and the book was delivered within ten days of the original target date. The printer did a great job getting the book out in a timely fashion despite an unexpected glitch with the texture of the copper band on the cover.

The reason for the "thank you" is that a good number of you have already placed an order for one (or more) books. We shipped twenty-five books yesterday and will ship about that many tomorrow. Orders continue to arrive via www.dayontortsbook.com.