Day on Torts

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."

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. . . ."

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 . . . ."

Ken Shigley has an interesting post listing some poll results that have been circulated in AAJ materials in recent days.  

Former Tennessee Supreme Court Justice Penny White, former Court of Criminal Appeals Judge Joe Riley and I are sponsoring our annual "Justice Programs" seminars again this Fall.  Here is the schedule  for this two-day, fifteen-hour program.

First Day

8:00 – 8:30 Registration
8:30 – 10:15 Tort Law / Comparative Fault
10:15 – 10:30 Break
10:30 – 11:30 Dealing with Difficult Judges
11:30 – 12:15 U.S. Supreme Court Review
12:15 – 1:15 Lunch on your own
1:15 – 2:30 Tort Law / Comparative Fault (cont’d)
2:30 – 2:45 Break
2:45 – 4:15 Evidence in the Trenches
4:15 – 4:30 Break
4:30 – 5:45 Business Torts – The State of Tennessee’s Law

I have been in Chicago for the last four days, attending the Board meeting of the National Board of Trial Advocacy and spending time with my son , MIchael.  We saw the Cubs beat the Astros Saturday afternoon and took in a street fair in Chinatown yesterday.  It was a great trip.

I apologize for the problem with the links to the last few posts.  I have brought the issue to the attention of my service provider and assume that it has been fixed.