This is a sample form set of interrogatories and requests for production of documents and things to send to a corporate defendant in a car wreck case. I typically serve a set of discovery with the complaint in order to get the ball rolling on the case. These form questions ask the basic issues that should be dealt with in almost any case involving a corporate defendant: (1) identifying witnesses, including experts; (2) determining whether any surveillance is being / has been conducted of the plaintiff; (3) narrowing any questions as to respondeat superior; and (4) discovering the factual bases for any affirmative defenses. There are other issues that you may want to address in the initial written discovery depending on the circumstances of the case. (For example, serving a request to produce the defendant’s vehicle itself for inspection to take photographs and recover data from the vehicle’s event data recorder, or “black box.”) Download file
Slip and Fall Cases – Constructive Notice
In Blair v. West Towne Mall, 130 S.W.3d 761 (Tenn. 2004), the Tennessee Supreme Court held that plaintiff may prove that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence. This decision is an express adoption of what used to be called the “method of operation theory” of proving constructive notice. The owner, a third person, or nature may cause the condition. You may read the text of the opinion by clicking here.
I do not like phrase “method of operation theory;” it sounds as if the defendant must knowingingly engage in practices that create a risk of harm. That is simply not correct.
The better label is the “reoccurring risk of injury theory.” In other words, plaintiff must demonstrate that defendant, a third person or nature regularly created some condition that posed a risk of injury to third persons. For instance, a plaintiff who fell in a grocery store could met her burden of proving notice by proving that she slipped on a liquid substance that being given away for test consumption as a store promotion several isles away. She could prove actual notice of the substance on the floor, true constructive notice, or “risk of reoccurring injury” notice; i.e. that when the store had such give aways it routinely had spills nearby with such frequency that constructive notice should be found by the factfinder.
Does a Defendant Receive Benefit for Discounted Medical Care?
Medicare reimburses hospitals and other health care providers at a rate less than “charges,” i.e. the amount stated on the bill. The amount of the discount is often seventy percent or more. Should the medical expense recovery by a sucessful personal injury or wrongful death plaintiff be the amount of the charges or the discounted amount paid by Medicare?
The Supreme Court of Hawaii has ruled that the amount of the “charges” was the appropriate measure of recovery. In Bynum v. Mango the court said that “the tortfeasor is not entitled to reap the benefit of the plaintiff’s elgibility for public assistance or from the government’s economic clout in the health care market place.” Click here to read the opinion. The dissent may be read by clicking here.
Mississippi, North Carolina, South Carolina, and Wisconsin reach a similar result. California and Pennsylvania hold to the contrary. The citations to those opinions may be found in the Bynum decision.
Surveillance Videos Discoverable
The Illinois Court of Appeals has ruled that surveillance videos made of a plaintiff in a personal injury suit are disoverable.
In Shields v. Burlington Northern and Santa Fe Railroad Co. defendant argued that the films were protected under the work product doctrine. The appellate court followed the majority rule and held that the plaintiff was entitled to the videos. The court stated that “surveillance videos contain substantive evidence concerning the extent of a plaintiff’s injuries, and they do not reveal mental processes, opinions or other conceptual data. Thus, surveillance videotapes do not count as work product.” Read the opinion by clicking here.
It is important to warn your clients of the risk of surveillance videos. We tell our clients about the risk not because we want them to restrict their activities in public places but because we want to encourage them to accurately remember the activities they engage in so that they will not be impeached on video. Clients should also be cautioned about the difference between the activities they “can’t do” as a result of their injuiries versus the activities they do less frequently or do with pain they did not experience before the injury. An understanding of the difference in degree of these limitations will reduce the likelihood of successful impeachment of your client, by video or otherwise.
Wrongful Death – Whose Claim Is It?
Tennessee’s wrongful death law is a little unusual. The claim is the claim that the decedent would have been able to bring if the decedent were still alive.
Tennessee law spells out who has the right to bring an action of behalf of the decedent. The person who has the right to bring the claim is the only proper party plaintiff. Of course, after the Jordan opinion, certain beneficiaries can prove loss of consortium damages, but those parties are not true “plaintiffs” in the traditional sense of the word. Not only is it not necessary to add the other statutory beneficiaries but their efforts to remain in the case will be met with a motion to dismiss.
So, before you file a wrongful death case, study Title 20, Chapter 5, identify the proper plaintiff, and prepare your papers accordingly. It is appropriate to plead the existence of and even identify other beneficiaries who are entitled to prove loss of consortium, but they should not be named as plaintiffs in the case.
Order Reducing TennCare’s Subrogation Amount
TennCare has a statutory subrogation interest provided by Tenn. Code Ann. sec. 71-5-117. Under the statute, once a personal injury plaintiff’s attorney is on notice that TennCare has an interest, the attorney has an obligation to contact TennCare or the plaintiff’s managed care organization “before the entry of a judgment or settlement” to find out the amount of TennCare’s asserted subrogation interest. Tenn. Code Ann. sec. 71-5-117(g). TennCare’s subrogation interest is often small in comparison to the tort victim’s damages, if for no other than reason than the amount that health care providers write off from the patient’s medical expenses when accepting payment from TennCare. When a plaintiff’s damages bump into the available insurance policy limits, however, TennCare’s subrogation interest can be a significant barrier to accepting a reasonable settlement. Fortunately, Tenn. Code Ann. sec. 71-5-117 provides a remedy if TennCare or its MCO will not accept a reasonable reduction – a hearing by the trial judge to adjudicate TennCare’s subrogation amount.
In essence, Tenn. Code Ann. sec. 71-5-117 codifies both the “made whole” rule and the “common fund” rule, reducing TennCare’s recovery by the same factors that the plaintiff faces in evaluating a settlement.
First, the trial judge determines TennCare’s gross subrogation interest. The court looks to the medical expenses that the plaintiff could expect to prove at trial. The court also hears evidence introduced about TennCare’s total payments for those medical expenses. Tenn. Code Ann. sec. 71-5-117(g).
Finding Insurance Limits for Commercial Vehicles on the Web
49 C.F.R. 387 requires commercial motor carriers to maintain minimum insurance policy limits on their commercial vehicles. The minimum amount varies depending on the vehicle’s use. In any event, the commercial motor carrier is required to report their insurance policy limits to the Federal Motor Carrier Safety Administration. The FMCSA, in turn, publishes the information for free on a public website.
Comparative Fault and
Can a plaintiff who may be at fault assert res ipsa loquitur in a jurisdiction that has adopted comparative negligence?
The Eighth Circuit Court of Appeals recently examined this issue under Iowa law. The Court held that the Iowa Supreme Court would not require a plaintiff to disprove his or her own fault in order to rely on res ipsa. The decision is McGuire v. Davidson Manufacturing Company; to read the opinion click here.
The opinion does a nice job collecting case law from around the country on this subject. Of course, the opinion is not binding precedent on Tennessee but it will give you a good head start for your research on this issue.
Another Blue Chipper
Any list of the most important tort cases in the history of Tennessee tort law must include McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992).
This opinion radically changed Tennessee law by adopting modified comparative fault and abolishing joint and several liability in the vast majority of cases. The opinion also represented a major step by a newly-constituted court to bring Tennessee jurisprudence in step with the rest of the country.
By the way, the plaintiff lost the case on remand.
Voluntary Dismissals – A Sad Tale
Most of us have been there. You are at trial. The jury is in the box. Things have gone poorly. Your client, the plaintiff, was late, and showed up dressed in a pink oxford shirt and saddle shoes. (Your mistake, by the way. You told him to dress like he was going to church.) His wife, who has the disposition of a rattlesnake with a fresh boot print on its back, does not bother to hide her distaste for the proceedings, you or her husband.
The jury consists of twelve stone-faced people who all live or who aspire to live in 37027 (Brentwood), each of whom has the compassion of an investment banker (and, indeed, two of them are). These folks watch Fox News, listen to Rush Limbaugh, and believe that, had the editorial writers of the Wall Street Journal been born a few centuries earlier, they would have been amongst the contributors to the Good Book. They each think that “damn Democrat” is one word and that the only human being lower than your client is you, his pond-scum sucking trial lawyer.
The defendant, the minister for the largest church in the community, happened to run a stop sign on the way to visit a parishioner in a local hospital. His co-defendant is his church, the largest church in the community, the supplier of his 1995 Chevy Corsica and the immediate employer whose interest he was advancing on the day in question (there being substantial difficulty getting service of process on the ultimate Master). The good reverend is a gentle, kind-faced man of God who may well have ousted Charlton Heston for the lead in “The Ten Commandments,” had he not been hospitalized for diphtheria contracted while doing missionary work in Africa at the time of the casting call. His wife, who stands dutifully by his side at every break, looks like Aunt Bea in her church clothes.