Day on Torts

May 24, 2006

“The Judge Will Give Me More Time”

Don’t count on it. Read this new opinion from the Tennessee Supreme Court which affirmed a grant of summary judgment in favor of the defendant when the plaintiff submitted an affidavit in opposition to the motion after the date required by a previous order of the trial judge.

The core holding: “We conclude that the trial court did not abuse its discretion in denying the plaintiffs’ motion for an enlargement of time under Rule 6.02 after finding that there was no excusable neglect. The trial court held an extensive hearing and considered the factors identified above. The trial court considered the reasons for the plaintiffs’ delay, the length of the delay, the prejudice caused to the defendants, and the potential impact on the proceedings. Although the inquiry of prejudice and the effect of the delay generally should focus on the plaintiffs’ failure to identify expert witnesses by the deadline set by the trial court, this failure cannot be isolated from the plaintiffs’ failure to comply with other deadlines and magnifies both the prejudice to the defense and the effect of the delay.”

The case also held that the expert affidavit submitted by the plaintiff to oppose summary judgment was deficient: “Here, the plaintiffs relied on the affidavit of Dr. Robert Gordon. Dr. Gordon, a board-certified anesthesiologist who practiced in Winchester, Tennessee, stated that he was “familiar with the recognized standard of acceptable professional medical care in the metropolitan areas of Tennessee and specifically in Memphis, Tennessee and similar communities . . . .” The affidavit contains no information regarding the basis for Dr. Gordon’s familiarity with the standard of care in Memphis, Tennessee, nor does it contain a basis for finding that the standard of care in Memphis is similar to that in the community in which Dr. Gordon practices. In short, Dr. Gordon’s affidavit simply asserts that he is familiar with the applicable standard of care. As we have explained in prior cases, a bare assertion of familiarity is insufficient under Tennessee Code Annotated section 29-26-115(a)(1). Accordingly, we conclude that the affidavit was legally insufficient.”

May 23, 2006

Response to Motion in Limine to Exclude Economist’s Testimony

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

This is a brief in response to a defendant’s motion in limine to exclude the expert witness testimony of an economist. The economist was disclosed in a wrongful death case arising out of the drowning of a three-year-old boy. The economist is expected to testify about the present value of the child’s loss of earning capacity.

Obviously, with a child so young there is very little empirical evidence to establish the child’s likely career path. The economist was asked, then, to simply address the likely present value of the child’s earnings had he graduated high school and entered the workforce, and alternatively had he graduated college and entered the workforce. We are prepared to prove the child’s likely success in life through other witnesses, to let the jury decide his probable earning capacity, and to let the economist explain how to calculate that in today’s dollars.

The Defendants moved to exclude the economist’s testimony in part because he did not have a sufficient basis on his own for the assumptions of educational achievement. The Defendants also moved to exclude his testimony because the economist’s original report did not include a deduction for personal maintenance expenses, which the Defendants’ termed as “mandatory” under the Tennessee Supreme Court’s holding in Wallace v. Couch. A careful reading of Wallace and Tennessee evidentiary law on expert witnesses demonstrates the Defendants in our case were wrong.

May 22, 2006

New Comparative Fault Case

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

The Tennessee Supreme Court ruled on Friday that the failure of a plaintiff to get leave to amend a complaint before adding a nonparty as a defendant to not permit the newly-added party to raise the statute of limitations as a bar.

Key to the holding was the fact that the plaintiff got permission to amend after serving the “amended complaint” on the new defendant.

The holding: “When a plaintiff utilizes section 20-1-119 to amend a complaint to name a nonparty as a defendant, the plaintiff must first seek permission of the trial court or adverse parties as provided by Tennessee Rule of Civil Procedure 15.01. However, on the facts of this case, failure to file the motion to amend before filing the amended complaint and securing service of process is not fatal when all requirements of Rule 15.01, including the trial court’s grant of the motion to amend, occur within the ninety-day window created by section 20-1-119. Plaintiff has substantially complied with Rule 15.01 of the Tennessee Rules of Civil Procedure and should be allowed to amend her complaint to add Defendant as a party.”

May 20, 2006

Health Care Industry Tries End Run to Limit Liability

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

Last week Tennessee’s health care industry tried to hijack the Governor’s Cover Tennessee bill in an effort to obtain caps on their liability. The effort failed, thanks to the efforts of the entire Democratic Caucus in the Senate, Chairpman Person (R-Memphis), Senator Williams, and others.

The industry worked to amend the Cover Tennessee bill on the floor to limit their responsibility after a jury determines that medical negligence occurred. Usually, measures of this type are brought up through the committee system and, in fact, a similar piece of legislation was defeated in a House subcommittee this year. But the doctors alone had spent no less than $500,000 this year to get the special treatment they think they deserve so they decided to use the Governor’s health care bill to get what they wanted.

What is even more interesting is that they denied doing it. Why would they deny responsibility for trying to limit their responsibility? Because it is considered bad manners on Capitol Hill to try to bypass the committee system. And because you don’t mess with the Governor’s legislation without risking his ire. So, when the health care industry decided to do so, I guess they decided it was best to lie about what they were doing.

May 19, 2006

Insurance Cycle Continues to Turn

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

The property and causalty insurance cycle, understood by everyone except some (but not all) Republican lawmakers, continues to turn.

Insurance company profits are swelling and insurance price increases have come to a virtual halt. Last year premiums rose an average of one-half of one percent and net income increased 12%, despite record catastrophe losses. Surpluses (think “net worth”) in the industry now exceed $427 Billion. The average rate of return on surplus was 10.5%.

This article tells us that one expert predicts that premium growth will slow in 2006 and, in fact, may be less than the rate of inflation. Insurers will have cut prices to maintain premium volume, which will cause underwriting losses. Some degree of underwriting losses are ok (last year the companies paid loss and loss adjustment expenses of $100.90 for every $100 in premium) so long as the companies can earn a decent rate of return on their investments. If they don’t, however, they have to raise rates to maintain profitability. Of course, the companies then will blame those increases on GREEDY TRIAL LAWYERS.

May 18, 2006

Settlement Agreement Enforceable

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

OK, so it is a compromise and settlement of a divorce case. The fact remains that the law of compromise and settlement in Tennessee has been in disarray and the Tennessee Supreme Court has taken a step in the right direction to get it fixed.

In Barnes v. Barnes, No. W2004-01426-SC-R11-CV, ( Filed May 17, 2006) the TSC reversed an appellate court opinion which held that an MDA signed by the parties was not an enforceable agreement. The husband admitted executing the agreement but tried to back out of it two weeks after he signed it.

Read the opinion here.

May 17, 2006

USSC Decide ERISA Subrogation Case

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

The SCOTUS has decided the Sereboff v. Mid Atlantic Medical Services, Inc. case – the long awaited case that was to tell us about an ERISA plan’s right to seek reimbursement of medical payments from a tort recovery.

The Court held that the payments were recoverable.

The case was decided on May 15, 2006. The case number is 05-260.

May 16, 2006

Interesting Article on Punitive Damages

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

Professor Anthony Sebok from the Brooklyn Law School has written an interesting paper on punitive damages.

Here is his abstract of the article:

In this article I argue that the current problem with punitive damages in the United States is not, as is popularly believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis – courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining significant non-deterrence theories of punitive damages (including the theory developed by the United States Supreme Court in a series of recent decisions) fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as “private retribution” – which sounds odd to the modern ear – fits surprisingly well with modern theories of the tort system which view tort law as a system of civil recourse for citizens who have suffered wrongs in private law.

May 15, 2006

Causation in a Criminal Act of Third Party Case

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

Here is a great opinion out of California that does a nice job of handling the “causation” issue in a case against a security guard company that is alleged to have failed to provide proper protection to a c-store employee.

The case is Mukthar v. Latin American Security Company, B183968 (Cal App. 2nd Div. 5/8/06).

An excerpt: “We disagree with the trial court that it is conjectural whether a “security guard could have prevented the attack on the Plaintiff.” The issue is whether it is a question of fact whether the woman would have struck Mukthar in the face, if an armed, uniformed security guard, equipped with a baton and handcuffs, would have stood next to Mukthar. (There is no dispute about the fact that the guard’s station was at the door, where Mukthar was standing when he was struck.) We think the inferences are not evenly balanced on this issue. It is more likely than not that the woman would not have hit Mukthar in the face in the close proximity of an armed guard who had the ready means at hand to respond physically to violence. Be that as it may, it is not for us to decide this question of fact, which is consigned to the trier of fact.”

May 12, 2006

Changes to the Federal Rules of Civil Procedure

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

Yesterday I posted changes to the Federal Rules of Evidence.

Below, in the language of US Courts, are the changes to the Federal Rules of Civil Procedure. Absent action by Congress, the changes are effective December 1, 2006.

Civil Rule 9 (Pleading Special Matters) (conforming amendment pertaining to Supplemental Rule G)