Day on Torts

May 19, 2005

Memorandum of Law in Support of Motion to Strike Affirmative Defenses

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.

May 18, 2005

Order Approving Minor’s Settlement

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

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.

May 17, 2005

Damages for Medical Bills Reduced By Contractual Discounts

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

The Florida Supreme Court has held that a plaintiff in a personal injury case cannot recover the gross amount of his medical bills when the plaintiff’s HMO has negotiated a lower rate of reimbursement with the health care providers. The decision is based in part on a Florida statute codifying the collateral source rule. Read the decision here.

The majority opinion and the accompanying concurring opinions do a nice job collecting the law on this subject.

Look for this issue to be raised more frequently in Tennessee.

May 16, 2005

Informed Consent A Jury Question

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

The Supreme Court of North Dakota has ruled that whether or not a reasonable patient would accept the risk of death from a procedure is a jury question and not one for which expert testimony is necessary. The plaintiff’s wife died after an IVP. The doctors admitted that they did not inform the patient of the risk of death.

Here is the opinion.

North Dakota does not appear to require expert testimony on what should have been disclosed to the patient; Tennessee law does require expert testimony on this subject. However, expert testimony should not be required on the issue of whether or not the reasonably prudent person would, under the circumstances, accept the risk of the procedure.

May 15, 2005

Source for Medical Images – Free

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

GE’s Standard Edition of Medcyclopedia includes at no charge all text and images from The Encyclopaedia of Medical Imaging’s eight book volumes: Physics, Techniques and Procedures, Normal Anatomy, Musculoskeletal and Soft Tissue Imaging, Gastrointestinal and Urogenital Imaging, Chest and Cardiovascular Imaging, Neuroradiology and Head and Neck Imaging, and Paediatric Imaging. There is a total of 18,000 topics and10,000 images.

The site notes that you are free to copy text and images for non-commercial use in lectures, articles, etc. provided that you refer to the source.

Thanks to the Insurance Defense Blog.

May 14, 2005

Order Shifting Costs of Expert Witness Depositions in Medical Malpractice Case

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

This is an Order entered in Davidson County Circuit Court that effectively shifts the costs of deposing expert witnesses to the defendant if they disclose more than two experts on any subject. The Order requires the defendant pay the court reporter fee, transcript fee, and any expert witness fee associated with the plaintiff’s discovery deposition of the additional expert witnesses. The Order comes from a motion in a medical malpractice case. For a copy of the motion and memorandum of law in support (or for a clearer copy of the signed order that has not been shrunken down to post on the web), email me.

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Medical malpractice cases are expensive propositions for plaintiffs in any case, but when there are a number of defendants involved, the time and costs required can steamroll quickly. More defendants = more defense lawyers = more time and eyes watching the case on the defense side = exponentially more work for the plaintiff’s attorney.

May 13, 2005

Summary Judgment – Can You Get An Extension of Time To Do Discovery?

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

You cannot count on getting more time to do “discovery” in response to a motion for summary judgment. In Guzman-Ruis v.. Hernandez-Colon the defendant filed motion for summary judgment. Plaintiffs received one extension of time to respond, but failed to respond by the extended deadline. Some two months later, plaintiffs requested another extension to conduct further discovery. The court of appeals affirmed the district court’s denial of plaintiffs’ motion, stating that such extensions required due diligence both (a)in pursuing discovery before the summary judgment initiative surfaces and (b)in pursuing an extension of time thereafter. Read the opinion here.

To avoid this problem, start your discovery as early as reasonably possible. If the motion for summary judgment comes early, immediately serve the discovery you need and seek the depositions you need. Make sure your motion for an extension does not just ask for “more time;” be specific about what you need. And, for heaven’s sake, if you get an extension do your best to get your discovery done in the time you have been given.

May 12, 2005

Pro-Plaintiff Opinion from Sixth Circuit

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

The Sixth Circuit Court of Appeals reversed a ruling of the trial judge excluding certain experts in a medical negligence case, stating that Daubert’s role of ensuring that the courtroom door remains closed to junk science is not served by the exclusion of testimony supported by relevant experience. The Court further held the “exclusion of testimony in cases of medical experts is rarely justified as opposed to supposed experts in the area of product liability.”

Click here to read the opinion.

May 11, 2005

Flow Sheet for Handling a Personal Injury Case

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

This is a flow sheet for plaintiff’s lawyers to use in personal injury cases, starting with the first client interview and moving all the way up to the pre-trial brief. This is mainly a big picture view to keep you from missing the forest for the trees in litigation. It reminds you to check the answer to see if the defendant has pled the comparative fault of anyone else, to ask opposing counsel for a stipulation as to reasonableness and necessity of medical expenses, and the other important steps along the way in a case. While every file has its own nuances, hopefully this will serve as a nice checklist for you on the more common occurrences in a case.

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May 10, 2005

Failed Vasectomy – Wife Has No Claim

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

James’ vasectomy did not go as planned. His wife Corrine became pregnant. They filed suit against his urologist.

The Maryland Court of Special Appeals held that Corrine could not file suit against the doctor because there was not a physican-patient relationship. In short, the Court ruled that Corrine did not establish that her husband’s doctor owed her a duty of care.

The dismissal of James’ claim on the ground of contributory negligence was also affirmed. (In Maryland, contributory negligence is still an absolute bar to recovery.) The basis for the claim of contributory negligence included the failure to follow doctor’s orders.