Day on Torts

Wrongful death cases are a unique breed, and the damages recoverable in a wrongful death case deserve special attention. Through the Tennessee Supreme Court’s holding in Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999), the jury is allowed to consider the human losses suffered by the victim’s surviving family members. Unlike a personal injury case, however, the surviving family members do not hold a separate claim for loss of consortium. To the contrary, the Supreme Court made clear that it’s holding in Jordan did not create a new cause of action, but merely “refines the term ‘pecuniary value.'” The family members do not have their own claims, but the family members’ personal losses are considered part of the victim’s worth. The distinction of who owns the claim for Jordan type damages has it’s greatest practical impact in the admission of evidence, the verdict form, and the distribution of proceeds among the surviving family members.
At the pleading stage, the plaintiff should try to provide notice to the defendants of each of the family members whose losses will be asserted. This Complaint covers a wrongful death where the victim leaves behind one minor child but no spouse. Note that, under Jordan, an adult child also has a right to recover, but the trier of fact takes into consideration factors that suggest the closeness and dependency of the parent-child relationship. Download file

In some cases, a personal injury plaintiff will have medical records that merit extra protection against needless disclosure. A prime example: psychological counseling records. This simple agreed protective order can allow the defendants to discover the plaintiff’s mental health records, consult with experts in evaluating the records, and use the records in the litigation without destroying the plaintiff’s privacy.
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FRCP 26 disclosures are due so early in litigation, it only makes sense to have a form ready. This is a fill-in-the-blank form for a personal injury plaintiff’s FRCP 26 disclosures.
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A plaintiff must prove that all expenses, including medical expenses, are reasonable and necessary in order to recover for them. Without proof of reasonableness and necessity, the plaintiff fails to prove causation between the tort and the medical bill. A plaintiff who provides the defendant with an itemized list of medical expenses at least 90 days before trial gets a rebuttable presumption that the expenses are reasonable. Tenn. Code Ann. sec. 24-5-113(b). In addition to the presumption of reasonableness, a legible itemization of medical expenses is a much cleaner exhibit for trial than a stack of xeroxed carbon copy medical bills. The itemization can be admitted by the court as a summary under Tennessee Rule of Evidence 1006.
Here is a sample itemization. Download file

Tennessee Rules of Civil Procedure 8.02 and 8.03 set out the basic requirements for defenses asserted in an answer. One critical requirement is that a defendant wishing to assert an affirmative defense must state in short and plain terms the facts in support of that defense, “including the identity or description of any other alleged tortfeasors” that the defendant wishes to blame by comparative fault. The Tennessee Supreme Court has made clear that pleading comparative fault requires providing sufficient information in the answer to allow the plaintiff to plead and serve process on the person pursuant to Tenn. Code Ann. sec. 20-1-119. Brown v. Wal-Mart Discount Cities, 12 S.W.3d 785 (Tenn. 2000).
If a defendant attempts to plead an affirmative defense without providing the information required by Tenn. R. Civ. P. 8.02, a plaintiff should file a motion to strike those portions of the answer. The plaintiff needs to know who the defendant is going to blame before the defendant submits a proposed jury form listing those persons, and needs to know the basis for the comparative fault in order to conduct discovery and decide whether to bring the other party in by 20-1-119. Even if the defendant is blaming the plaintiff, the plaintiff should be informed of the basis for that comparative fault allegation to have the opportunity to rebut the defendant’s argument. This is a standard Memorandum of Law in Support of a Motion to Strike comparative fault defenses that lack sufficient information.
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Note that the Court of Appeals for the Middle Section ruled that the State of Tennessee does not have “discretionary function immunity” in an extremely thoughtful and well-reasoned 2004 opinion, Lucas v. State. The Tennessee Supreme Court also denied the State’s requested appeal and designated the opinion for publication.

Court approval should be sought for settling any case involving a minor (or disabled person), regardless of whether a lawsuit has already been filed or a compromise reached without litigation. T.C.A. sec. 34-1-121 gives the court power to approve the settlement and to waive the usual requirements of guardianship if the court determines it is in the best interests of the minor. The court’s approval binds the minor to the terms of the settlement. Approval is available whether the minor is the injured plaintiff, a defendant promising some performance, or entitled to receive some or all of the proceeds of a wrongful death settlement.

This Order Approving Minor’s Settlement is from a medical malpractice case in which the infant suffered permanent injuries, including cerebral palsy, due to birth trauma. While you may need to incorporate the terms of a trust or other structured settlement (as we did through a separate order in this case), this Order sets forth the basics for a court to approve the terms of the settlement, order the defendants to make the payments outlined in the settlement, approve the attorneys’ fee and expenses, and approve any payments for subrogation interests.