Judge Keeton, co-author of Prosser and Keeton on Torts, died July 1, 2007 in Cambridge, Massachusetts. Keeton was a professor at Harvard and later became a federal district judge. He was 87.
Bridge Collapse
Investigations following the collapse of the bridge in Minneapolis will tell us how it occurred and whether anyone bears responsibility for the failure.
In Tennessee, it would be very difficult for a case to be brought the most obvious potential defendants. Our state and local governments have a damage cap that make it impossible to economically pursue claims after such a disaster. Our "architects, engineers and contractors immunity act" make it impossible for them to be held responsible more than four years (ok, four plus one years) after construction (absent a showing of fraud). Our products liability act gives manufacturers of any component parts a get-out-of-jail-free after ten years.
Of course, perhaps contractor(s) working on the bridge at the time may be found to have some fault and perhaps a private firm did an inspection and did not perform it carefully – the facts will trickle out over the next few days. But in Tennessee the ability of these potential defendants to assert fault against the potential defendants mentioned above and have that fault reduce the recovery of the plaintiff (the magic of several liability and allowing fault to be placed on immune non-parties) make these cases a challenge, too.
Collateral Source Rule Bars Evidence Of Amount Paid By Health Insurer
The Wisconsin Supreme Court has ruled that a plaintiff is entitled to prove the full amount of medical charges, despite the fact that plaintiff’s insurer actually paid a less amount. The lesser amount cannot be used to prove that it is the "reasonable" value of the services.
This is how the Court expressed its holding: " the collateral source rule prohibits parties in a personal injury action from introducing evidence of the amount actually paid by the injured person’s health insurance company, a collateral source, for medical treatment rendered to prove the reasonable value of the medical treatment."
The majority opinion is 37-pages long, but here is a brief statement of the reason for the Court’s holding: "Although an injured person may experience double recovery when the collateral source rule is applied, one recovery from the collateral source and a second recovery from the tortfeasor, the purpose of the collateral source rule is not to provide the injured person with a windfall, but rather to prevent the tortfeasor from escaping liability because a collateral source has compensated the injured person. The injured person, not the tortfeasor, benefits from the collateral source." [Footnotes omitted.]
Off Topic – Op-ED Piece by DOJ Lawyer
This post has nothing to do with torts, except perhaps the tort of outrage. But I read about this op-ed piece in Trial Ad Notes, and thought that at least some of you would enjoy it.
John Koppel, who has served at the Department of Justice for over 25 years, doesn’t like what is going on there. Not one bit. And he is naming names.
He ends his remarks with these words: " I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk."
Effect of the Failure to Identify Pending Tort Action on Bankruptcy Filing
It is not uncommon for plaintiffs in personal injury cases to get into financial problems. Medical bills need to be paid and the injured person’s income is often disrupted and may be nonexistent.
But, this opinion makes it clear that the failure to disclose the existence of the pending personal injury suit can result in its dismissal. In Gardner v. Union Pacific Railway Co., No. 05-8106 (10th Cir. July 6, 2007) the plaintiff failed to disclose his pending personal injury suit filed under the Rail Road Workers’ Compensation Act in his post-accident bankruptcy and failed to tell the truth about the lawsuit in a meeting of creditors. He received a discharge of his debts under Chapter 7 of the Code.
Almost a year later plaintiff’s personal injury attorney became aware of the filing and notified the bankruptcy trustee, who in turn moved to re-open the bankruptcy and list the pending case as an asset. The defendants in the personal injury case got involved before the federal district court and asked the court to dismiss the case the grounds of judicial estoppel. The federal district judge agreed, saying "[w]hat the Court finds most telling . . . is the fact that when given the opportunity at the meeting of creditors to reveal the pending litigation, Mr. Gardner did not disclose his personal injury action. First, he explicitly denied having a personal injury action pending. Second, his attorney represented that the claim was not workers’ compensation “per se,” but indicated that any claim was related to an on-the-job injury, leading the Trustee to believe that the claim was similar in nature to a workers’ compensation claim. Third, Mr. Gardner’s attorney referred to UPRR’s failure to provide hearing aids to Mr. Gardner, misrepresenting the extent of the claims involved. Mr. Gardner had an affirmative duty to speak up and let the trustee know the nature of his lawsuit against UPRR as well as eight other defendants. . . ."
Notre Dame Coach Lose Malpractice Trial
Charlie Weis, the head coach of the Notre Dame football team, lost the medical malpractice case he filed in Massachusetts.
The lawsuit arose out of gastric bypass surgery Weis had in June of 2002. According to this article posted on www.boston.com, "Weis, 51, who became ill after the operation, alleged that the surgeons were negligent for letting him bleed internally for 30 hours before they started a second surgery to respond to the complication. He testified he still has numbness and pain in his feet and had to use a motorized cart shortly after the operation."
Can A Special Needs Trust For a Child Escape An ERISA Subrogation Interest?
This decision from a federal judge in Pennsylvania will cause excitement throughout the tort bar: he ruled for a plaintiff who worked to protect assets from a claimed ERISA subrogation interest by having the proceeds of a settlement go from the defendant to a special needs trust.
Law.com published this article about the decision from Judge John P. Fullam. The article does a nice job of explaining the articles put forward by all parties.
If you want to read the full decision in Mills v. London Grove Township, 2005-00122 (July 19, 2007), click here.
Oral Arguments in Knoxville
The Tennessee Supreme Court will hear arguments in the following cases that are of interest to tort lawyers in Knoxville on September 6:
Konvalinka v. Chattanooga-Hamilton County Hospital Authority – (Swiney, author) (Susano & Lee) –
1. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt without any evidentiary hearing;
2. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt when case law supports a separate request for documents pursuant to a statute not being in violation of a stay of litigation.
3. Whether the Court of Appeals erred in holding attorneys John Konvalinka and Jennifer Lawrence in contempt for pursuing a Tennessee public records act request when only lower court proceedings in the Stratienko action were stayed, and not a separate action to enforce the right of access to public documents.
4. Whether the Court of Appeals erred finding contempt when counsel acted in good faith and reasonably interpreted the stay order at issue pursuant to existing law.
5. Whether the Court of Appeals erred in not remanding this matter for production of the requested documents, and in not awarding attorney’s fees pursuant to the valid public records act request.
Tenn. Farmers Life Reassurance Co. v. Rose – (Susano) (Franks, concurring;
Swiney, dissenting)
1. Whether the C/A erred in affirming the Trial Court’s grant of summary judgment by concluding that the attorney in fact under the durable general power of attorney did not have the specific authority to execute an effective life insurance change of beneficiary form, notwithstanding the
fact that the power of attorney specifically authorized the attorney in fact to "transact all insurance business", to "take any other action necessary or proper in this regard . . .", and to "execute and perform all and every act and thing whatsoever without limitation whatever and without being confined to the specific acts hereinabove set out . . . ."
An Analysis of the Murphy Opinion
Sylvius von Saucken, a partner in the Garretson firm, has written this analysis of the opinion in Murphy v. United States, released by D.C. Court of Appeals on July 3, 2007. The case addresses the taxability of damage awards in cases alleging emotional distress.
Here, in bold, is his analysis of the decision:
On July 3, 2007 the highly anticipated Murphy decision was handed down following its rehearing on April 23, 2007. The original three judge panel (for the D.C. Court of Appeals) reheard the case following the Government’s Petition for a Rehearing En Banc. This case has a rather unusual procedural history because it is atypical for a court to vacate its own opinion, which in turn renders an existing Petition for a Rehearing en banc moot, and then rehear the case. The court’s impetus for doing so remained a mystery up until Tuesday. In the recent decision the court explained its actions. In its Petition for a rehearing the Government raised a new constitutional issue, as the Government argued “even if Murphy’s award is not income, there is no constitutional impediment to taxing it because a tax on the award is not a direct tax and is imposed uniformly.” This issue apparently triggered the court to vacate its earlier opinion and effectively gave the Government another try.
Law Review Article
The Michigan Law Review has published an interesting article called "Doctors & Juries" by Philip G. Peters, Jr.
Here is a synopsis of the article: "Physicians widely believe that jury verdicts are unfair. This Article tests that assumption by synthesizing three decades of jury research. Contrary to popular belief, the data show that juries consistently sympathize more with doctors who are sued than with patients who sue them. Physicians win roughly half of the cases that expert reviewers believe physicians should lose and nearly all of the cases that experts feel physicians should win. Defendants and their hired experts, it turns out, are more successful than plaintiffs and their hired experts at persuading juries to reach verdicts contrary to the opinions of independent reviewers."
One of his conclusions: "As a consequence, politicians and critics of jury performance in medical malpractice cases should think twice before concluding that doctors will be treated more favorably in health courts."