The United States Supreme Court has approved changes to several rules of the Federal Rules of Evidence. The changes become effective December 1, 2006 unless Congress votes to overturn them.
Here is the language of the rule changes from the US Courts website:
Evidence Rule 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes) (clarifies that evidence of a person’s character is never admissible to prove conduct in a civil case)
The Nebraska Supreme Court has ruled that plaintiffs could not argue that a surgeon should have disclosed his displinary history unless there was proof that the standard of care required disclosure.
The Court held that plaintiffs “never established that the standard of care required such disclosures. Rather, they ask us to adopt a different standard of care for a narrow class of plaintiffs. Not only is their approach unprecedented, it contravenes the Legislature’s adoption of the professional theory by supplanting, in a single narrow context, the Legislature’s judgment.”
The Court also held that the evidence was not admissible to impeach the defendant.
The USSC has ruled that a state may not enforce its Medicaid lien out of money paid to the plaintiff for losses other than medical expenses. The case is Arkansas Department of Health and Human Services v. Ahlborn, No. 04-1506 (decided May 1, 2006).
Arkansas had a statute that permitted it to have its Medicaid subrogation interest paid out of a tort recovery by the plaintiff. Arkansas took the position that it was paid “off the top,” without regard to whether the money was paid for medical bills or some other compensable loss. That statute was held to be in violation of federal law.
The USSC addressed the issue of the parties potentially setting up an artifical allocation of settlement monies for medical expenses fopr the purposes of defeating Medicaid subrogation. The Court said “[e]ven in the absence of such a post-settlement agreement [about what portion of the settlement proceeds should be allocated to medical expenses], though, the risk that parties to a tort suit will allocate away the State’s interest can be avoided either by obtaining the State’s advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision. For just as there are risks in underestimating the value of readily calculable damages in settlement negotiations, so also is there a countervailing concern that a rule of absolute priority might preclude settlement in a large number of cases, and be unfair to the recipient in others.”
Senator Frist and his friends are back with another bill to restrict the rights of medical malpractice victims. Here is the bill, known as S.B. 22.
Expect a vote on cloture today or tomorrow.
The legislation includes caps on noneconomic damages, uniform statutes of limitations (except in states that have more pro-provider limits), expert witness rules, collateral source changes, and caps on attorneys’ fees. The bill also enhances Rule 11 sanctions in medical malpractice cases.
2:17 P.M. Monday: Here is the link to the CSPAN site where you can watch the debate:
Debate
The Senate has just had the cloture vote on S.B. 22.
The result was 48 – 42 to continue debate. Sixty votes were required to cut off debate.
The fillibuster stands; debate continues.
I was in court last Monday morning and a lawyer sitting next to me asked for some help on a comparative fault issue. I told him the answer and that the case law in support of the answer could be found in Chapter 5 of Tennessee Law of Comparative Fault, the book I co-authored with Donald Capparella and John Wood. He told me that he had a copy but the relevant case law was not there. I shortly figured out that he had the first edition of the book.
The second edition of Tennessee Law of Comparative Fault is published by West Publishing and has been updated via pocket part three times. Here is the Table of Contents. You can purchase the book by clicking here.
If you practice tort law in Tennessee I think you will find that this book will save you several hours of work every time you face a comparative fault issue.
The Court of Appeals of Maryland has held that an Ohio lawyer who contracted over the telephone and by mail to perform legal services in Ohio for a Maryland resident could not be sued for professional negligence in Maryland.
Here is the summary of opinion as prepared by the Court:
“The Court considered here whether communicating alleg edly negligent legal advice to a Maryland resident via two telephone ca lls and two letters constitute sufficient minimum contacts to support personal jurisdiction by a Maryland court over an Ohio attorney under the Due Process C lause of the Fourteenth Amendment to the U.S. Constitution. Petitioner filed suit against Respondent, an attorney admitted to practice in Ohio, in the Circuit Court for Baltimore City alleging professional malpractice stemming from legal representation undertaken, and advice given, by Respondent to Petitioner by written and telephonic correspondence in 1985, 1986, and 1994 regarding the expungement of Petitioner’s Ohio juvenile records and the failure to expunge those records. Relying upon the Maryland longarm statute, ㋔㋔ 6-103(b)(1) and (3) of the Courts and Judicial Proceedings Article of the Maryland Code (1973, 2002 Repl. Vol.), Petitioner argued that Respondent established minimum contacts w ith Maryland to justify asserting p ersonal jurisd iction over him because harm caused by the alleged malpractice was experienced by Petitioner in Maryland.
The Kentucky Supreme Court has just released an opinion that discusses the elements of the tort of negligent supervision of a minor.
This is the law in Kentucky: “A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.”
The Court held that “It is not negligent supervision per se for parents to fail to monitor their teenager twenty-four hours a day when the parents are not aware of, and have no reason to be aware of, any particular risk necessitating such intensive monitoring. Parents owe no duty to third parties to supervise or control their minor child to prevent the child from harming others unless the parents know, or should know, of the need and opportunity to exercise such control and the parents have the ability to exercise such control. The mere fact that the parents do not have the ability to exercise control is not, in and of itself, proof that the parents violated a duty to control their child to prevent him from harming others. The Fritz appellants have not presented any evidence to establish either that the Hugenbergs knew, or should have known, of a need to prevent Mikael from drinking and driving and of an opportunity to prevent him from doing so or that the Hugenbergs had the actual, physical ability to have prevented Mikael from drinking and driving on the evening of September 18, 1999. Therefore, summary judgment was properly granted on the negligent supervision claim.”
A great new study that could provide for support for determining the value of the life of a homemaker.
A news article says this about the study: “A full-time stay-at-home mother would earn $134,121 a year if paid for all her work, an amount similar to a top U.S. ad executive, a marketing director or a judge, according to a study released on Wednesday. A mother who works outside the home would earn an extra $85,876 annually on top of her actual wages for the work she does at home, according to the study by Waltham, Massachusetts-based compensation experts Salary.com.”
