Day on Torts

September 5, 2007

FTCA Discretionary Function Exception

It is not just the Tennessee Governmental Tort Liability Act that has a discretionary function exception – the Federal Tort Claims Act has one, too.

This case – Navarette v. United States – discusses the exception and applies it to a case filed after a person fell off of a cliff at a Army Corps of Engineers’ park. The case includes a dissenting opinion, and thus gives you an opportunity to see two different views of the doctrine.

The opinion, released by the 9th Circuit on August 29, 2007, may be read here.

September 4, 2007

Troup v. Fischer Steel Decided

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

The Tennessee Supreme Court decided the Troup case on Friday. Troup is a case involving a third-party tort action arising from an on-the-job injury suffered by the employee of a sub-contractor on a construction site. The Western Section of the Court of Appeals held that it was reversible error not to instruct the jury that the general contractor could be held at fault. The trial judge instructed the jury that it could consider the conduct of the general contractor only if the conduct was the sole cause-in-fact of the plaintiff’s injuries. The basis for the trial judge’s decision was that the general contractor was a statutory employer and thus the issue was controlled by the Synder decision.

The Tennessee Supreme Court agreed with the trial judge and reinstated the jury’s verdict. Here is how Justice Holder’s opinion described and addressed Fischer’s argument:

Fischer’s argument requires an analysis of Tennessee Code Annotated section 50-6-113 (2005), which provides that a principal contractor (i.e., a general contractor) may be liable for injuries to employees of a subcontractor. Under this subsection, Belz, the general contractor, is liable for Troup’s injuries because Troup was injured while working for Jolly, Belz’s subcontractor. In exchange for this exposure to liability under the Workers’ Compensation Law, Belz receives immunity from suit in tort. See Tenn. Code Ann. § 50-6-108 (2005). In addition, if Belz paid compensation to Troup, then Belz would be entitled to a subrogation lien against any judgment Troup received against a third party such as Fischer. See Tenn. Code Ann. § 50-6-112(c)(1) (2005). Fischer, however, argues that Belz did not pay benefits to Troup and therefore does not have a subrogation interest in the instant case. If Belz does not have a subrogation interest, then there is no actual threat that Troup’s recovery will be reduced a second time. Fischer argues that juries may apportion fault to employers when there is not an actual threat of a double reduction of a particular plaintiff’s recovery. We disagree.

August 29, 2007

Learned Intermediary Doctrine

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

Ordinarily, product manufacturers have a duty to make and sell products that are reasonably safe and not defective. If that is not reasonably possible, then the manufacturer has a duty to warn about defects or danger. The learned intermediary doctrine says that drug manufacturers owe no duty to warn consumers about the risks of consuming prescription drugs because the manufacturers can rely on the prescribing physician to do so. Over twenty states follow this doctrine. Tennessee adopted the doctrine in Pittman v. Upjohn Co., 890 S.W.2d 425, 431 (Tenn. 1994)

But that ain’t the law in West Virginia no more. In Johnson & Johnson Corporation v. Karl, No. 33211 (W.Va. June 27, 2007), a majority of the Supreme Court of Appeals said this:

In rejecting the application of the learned intermediary doctrine to drugs that had been the subject of direct-to-consumer advertising, the Supreme Court of New Jersey opined, and we agree, that such advertising obviates each of the premises upon which the doctrine rests:

August 27, 2007

Medical Diagnosis/Code – Acronym Look Up

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

This post is taken from an email sent out by Janabeth Fleming Taylor at Attorney Medical Services:

ICD-9 codes (Think of it as "Diagnosis" Code)

http://www.cdc.gov/nchs/icd9.htm

August 24, 2007

Changes to Rules

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

A friend emailed me today to ask if the deadline for filing a transcipt on appeal had changed. It has.

Effective July 1, TRAP 24 and 25 now require that a transcipt be filed within 60 days. The old rule gave court reporters 90 days to prepare the transcript. That time period became ridiculous with changes in technology.

Other changes to the rules effective July 1:

August 23, 2007

$1000 Per Hour

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

They have broken the $1000 per hour barrier in New York.

Of course, Gary Brewer and Steve Terry were charging that four years ago in Bulls Gap.

August 22, 2007

A Practice Tip for Federal Court

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

Did you know that you can avoid the use of affidavits in federal court and use declarations instead?

I confess that I did not until I read this post in What About Clients?, one of my favorite blogs. 28 U.S.C. Sec. 1746 "allows a federal court affiant or witness to prepare and execute a "declaration" rather than an affidavit–and do that without appearing before a notary. Under section 1746, a "declaration" has the same force and effect of a "regular" notarized affidavit."

Holden Oliver, the author of the post, points out that "an un-notarized declaration with the simple oath required by section 1746 can be used any time you need an affidavit, e.g., an affidavit supporting (or opposing) a summary judgment motion."

August 21, 2007

Fighting Back

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

The people opposed to the efforts to restrict the right to trial by jury in personal injury and wrongful death cases are fighting back – this time with a video on YouTube.

Watch it here.

August 21, 2007

Tennessee Supreme Court Releases Defamation Opinion

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

The Tennessee Supreme Court has released an opinion that sets forth the scope of the litigation privilege to pre-litigation activity by counsel. The Court said that "an attorney is privileged to publish what may be defamatory information prior to a proposed judicial proceeding, even though the communication may be received by individuals who are unconnected with the proposed proceeding. In order for the privilege to apply, (1) the communication must be made by an attorney acting in the capacity of counsel, (2) the communication must be related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published."

Read the entire opinion here.

August 20, 2007

Big News from Medicare

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

Medicare is no longer going to pay hospitals from costs arising from "preventable errors" and "serious preventable events."

What are preventable errors? The Washington Post story on the subject says this: "bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder."

Serious preventable events? They are events that should not occur during a hospital stay such as "leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products."