I have two depositions today and need a little more time to prepare No post today.
I would point out, however, that the Tennessee Trial Lawyers Mid-Winter Convention has a good line-up of speakers and topics this year. The seminar is February 1 in Nashville.
See a brochure here.
You should. Or should do something like it.
When you produce documents to an opponent it is nice to be able to demonstrate which documents you turned over. “In response to RFP #4 Plaintiff produces documents 0023 – 0045.”
By marking each document (or photograph) with a unique number you will be able to demonstrate what you have produced. Numbering documents also helps you remember months later what you previously produced so that you do not have to worry whether you inadvertently failed to produce something you were supposed to produce.
I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).
What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.
I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.
Here is a tip that will improve the quality of your law practice and your life – look at the law first.
Oh, it is different in the run of the mill auto case or other cases that you routinely handle. And it is different if you have recently handled a case that presented the same issues. But unless the new case you have just been offered falls into one of the above senarios take a little time and confirm (or enlarge) your understanding of the law before you accept a new matter.
Why? The law changes – Tennessee appellate courts issue over 200 tort opinions a year. Moreover, as we get older and busier, our memory of what we think the law is can sometimes be just plain wrong. It is far better to spend a little time examining the law before we accept a case than it is to be surprised by a motion to dismiss.
The medical liability insurers, hospitals and doctors are coming at Tennessee consumers this year in the Legislature – a full frontal assault in a effort to limit responsibility for negligence.
I have argued for years that the “reformers” use faulty numbers – and they do. The reformers have figured out that the numbers do not support what they want, so they have changed the focus of their attack to say (a) things aren’t bad in Tennessee yet but it will get bad if we don’t change the law; and (b) people are being deprived access to health care because doctors no longer practice _______ (fill in specialty) in _________ (name of city, town or hamlet).
“The sky is falling argument” is quite easy to defeat because legislators hear that the sky is falling from every lobbyist every day.
Here is the website of the American Society of Anesthesiologists that lists their “Standards, Guidelines and Statements.”
There is a gold mine of information here for use in medical negligence cases.
The Tennessee Supreme Court has approved amendments to the rules of appellate procedure, civil procedure, juvenile procedure, and evidence. The rules will not take effect until they are approved by the General Assembly. The proposed effective date is July 1, 2006.
The most significant change concerning the duty to supplement discovery. The proposed rule is as follows:
“(1) A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including
attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.”
When should a court rule that a state statute “reforming” tort law (i.e. a law restricting the rights of tort victims) violates our constitution? Here are three interesting articles that discuss the issue, including one from my buddy John Vail in D.C.
This is not a new opinion, but I came across it recently and thought it was worthy of mentioning here. It sets forth the elements that must be proved in a medical monitoring case under West Virginia law. The plaintiff must prove that:
“(1) he or she has been significantly exposed; (2) to a proven hazardous substance; (3) through the tortious conduct of the defendant; (4) as a proximate result of the exposure, plaintiff has suffered an increased risk of contracting a serious latent disease relative to the general population; (5) the increased risk of disease makes it reasonably necessary for the plaintiff to undergo periodic diagnostic medical examinations different from what would be prescribed in the absence of the exposure; and (6) monitoring procedures exist that make the early detection of a disease possible.”
Remember that the Sixth Circuit Court of Appeals recently held that Tennessee would recognize a cause of action of medical monitoring. Read my post about the case here.
Defendant Carter pumped gas into his vehicle and left the station without paying. The station owner gave chase, and during the pursuit the station owner’s vehicle rear-ended Carter’s vehicle, injuring the plaintiff’s daughter. The daughter later died from the pain medication she was administered for treatment of her injuries
Carter moved for summary judgment, “argu[ing that his actions were not the proximate cause of the accident because he was not speeding or braking abruptly at the time the accident occurred.” The trial judgment dismissed the case against him.
The Court of Appeals reversed a grant of summary judgment, saying “we cannot say that no reasonable person could differ in concluding that an accident on a public road of Bay County was unforeseeable as Carter was seeking to escape from the pursuit. … This lawsuit does not concern Carter’s actions only at the moment of the collision, however. We agree with the appellant that Carter’s actions can be seen as a continuum beginning with the theft of the gasoline and continuing by fleeing through traffic from the [store owner’s] vehicle.”
