Day On Torts

Attorney Sued for Failing To Protect Subrogation Interest; Ordered to Re-Pay Trust Account Pending Outcome of Case

John Day — Thu, 17 May 2012 10:21:45 -0600

A personal injury attorney may be sued in federal court for the failure to pay a subrogation interest subject to ERISA and required to put money back into his trust account pending the outcome of the subrogation fight.

So holds the United States District Court for the Northern District of Illinois. In Central States v. Lewis, No. 11 CV 4645 (N.D. Il. May 15, 2012a personal injury attorney settled a case for a client and disbursed funds to himself and the client without paying the subrogation interest claimed by Central States. Central States sought a preliminary injunction against the attorney and client to restore the money to the attorney's trust account so that the plan could proceed with an action against the trust account. The court agreed, and stated that even the attorney's fee must be restored to the account, even if the attorney has already commingled the monies with other funds.

The Lewis court cited with approval the Longaberger opinion from the Sixth Circuit Court of Appeals, a case familar to all tort practioners.

The amount of the settlement was $500,000 and the claimed subrogation interest is $108,033.46. Since the plaintiffs, and not the plaintiff's lawyer, have to re-pay the monies, the lawyer may not have to put any money back into his trust account. However, if the plaintiffs have spent the money, or refuse to put it into the trust account pending the resolution of the case, the lawyer will have to do so because the order requires both the client and the lawyer, jointly and severally, to pay the funds.

Lesson: resolve subrogation interests before disbursing funds or at least before disbursing any funds that that would cause the balance held in trust to be less than the claimed subrogation interest. This lawyer is spending lots of time and money to defend this matter and, at the end of the day, may be on the hook for this money.

Truisms in Cross-Examination

John Day — Thu, 17 May 2012 05:35:39 -0600

The Cross-Examination Blog is a good blog to add to your reading list. Written by Ronald H. Clark, the blog is filled within helpful information for personal injury and wrongful death lawyers.

The following is from a recent post titled "Truisms in Cross-Examination:"

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)

1. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions--all the soul--is there.

2. Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The mental reservation of the witness--is often manifested in the tone or accent or emphasis of the voice.

3. Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.

4. An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth.

5. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.

6. Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game--partial and temporary success may otherwise end in total and remediless defeat.

7. Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.

8. Be respectful to the court and to the jury; kind to your colleague; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.

9. Thus, as you rise to cross-examine a witness, you should be armed with the skill to adopt the style required for this particular witness and jury, the technique to search out the truth, the knowledge of guidelines that have developed over the centuries, and, most important, the wisdom to discern the proper combination of style and technique you need to serve well the consummate role of the cross-examiner--the truth giver.

Lawsuits Against John Travolta Are Foolish

John Day — Fri, 11 May 2012 12:50:12 -0600

John Travolta, one of the better known actors in the world, has been hit with two lawsuits alleging that he engaged in sexual misconduct.

The allegations come from two masseurs who, so far, have refused to reveal their names. In one case, the masseuse claims that Travolta solicited sexual conduct with him on January 16, 2012 at the Beverly Hills Hilton. Travolta allegedly began rubbing the masseuse's leg, touched his scrotum and the shaft of his penis. Travolta adamantly denies the accusations, and has offered proof that he was in New York at the time the alleged incident occurred. Now, the accuser says he got the date wrong, and that the real date was some time earlier.

Here is a copy of the complaint in case. The theories of liability are assault, battery, and intentional infliction of emotional distress.

The second suit, also by an unnamed masseuse, claims inappropriate conduct in Atlanta on January 28, 2012. A press release by Travolta's attorney says that "Before the attorney for the two anonymous plaintiffs filed the claim on behalf of the second person who refuses to disclose his identity although required to do so, it is obvious that he checked media reports that my client was in Atlanta working on a movie." The second suit was added to the claim made by the first man in the amended complaint. It includes the same causes of action, but adds a civil rights violation under California law. Exactly how the second plaintiff, who alleges that the wrongful acts took place in Atlanta, will be able to seek relief under California civil rights law is unclear.

The lawyer for the plaintiffs in both cases is Okorie Okorocha, a Whittier College School of Law grad. He claims that more "victims" have come forward and that he is in the process of vetting their claims. If Okorocha was correctly quoted, he does not suffer from lack of confidence: "I'm the real deal,” Okorocha told CNN. “He [Travolta's lawyer Martin Singer] stepped into the ring with a gorilla. I am relentless."

Now, a third person has come forward with similar complaints. The article announcing this third claim includes a statement by Okorocha which says that more than 100 men have come forward with similar claims.

The alleged conduct, if it occurred, would rise to the level of civil battery (to the extent intentional touching occurred) and perhaps civil assault. Whether the conduct would rise to the level of intentional infliction of emotional distress is a closer call - I certainly do not profess to know California or Georgia law on that subject.

What really troubles me about these cases is that I can't figure out what the damages are. Assume that everything stated in the amended complaint is true. What is the injury? The most significant damage is the impact of the litigation on the private lives of the two plaintiffs, but they brought that on themselves by filing suit.

Don't get me wrong. If Travolta did exactly what he is alleged to have done, most of us would agree that the conduct is bizarre and even creepy. But, really, how would that cause any harm to anyone that would justify a lawsuit? There was no violence and no threat of violence. True, the conduct alleged is admittedly, shall we say, an aggressive request and outreach for sexual favors. However, there are lots of aggressive requests for sexual favors, most heard between Midnight and 3:00 a.m. in bars occupied by those under 30. I think most people who were at the receiving end of such action would laugh it off and have a great story to tell.

Then again, usually the person seeking the sexual favors is not one of the most famous actors in the world. It is John Travolta's fame that is driving these claims.

2012 Legislation of Interest to Tennessee Personal Injury Lawyers

John Day — Mon, 07 May 2012 05:58:58 -0600

Tennessee personal injury lawyers know that the Tennessee General Assembly is a far different place than it used to be. The Legislature is determined to change the rules of tort litigation for the benefit of defendants and those who would be defendants.

What follows is a list of legislation enacted during the 2012 session that has been signed by the Governor and is available on the Tennessee Secretary of State's website as of Friday, May 4, 2012. I know that there are other bills that have been passed but have not yet found their way to the Secretary of State's site. I will post on those public acts when they become available.

Public Chapter 506 requires that institutions of higher learning do background checks on those who have access to student rooms at those institutions. (This was passed in the last legislative session but I did not include it on last year's list.)
Public Chapter 518 impacts the defense of "unclean hands."
Public Chapter 539 exempts ambulances for certain requirements imposed on certain medical transportation companies.
Public Chapter 552 creates a cause of action for those injured or otherwise harmed by mislabeled sorghum molasses. Really.
Public Chapter 568 requires that all recreational vehicles available for rental or lease have functioning carbon monoxide detectors and provides that the failure to do so gives rise to civil liability, including payment of attorney's fees.
Public Chapter 613 creates a cause of action for victims of human trafficking offenses.
Public Chapter 649 allows nursing homes to employ physicians.
Public Chapter 678 provides that physician's assistants may not be subpoenaed to trial but may be required to give a deposition.
Public Chapter 798 appears to be a house-keeping Act that primarily deletes reference to "medical malpractice" and substitutes the language "health care liability action."
Public Chapter 844 enacts "Jaclyn's Law," which grants civil immunity to first responders in certain circumstances involving entry into homes.

Public Chapter 862 limits the liability of whitewater rafting companies.

Tennessee Comparative Fault Law is 20 Years Old Today!6

John Day — Fri, 04 May 2012 06:34:20 -0600

Today, May 4, 2012, is the 20th anniversary of the landmark McIntyre v. Balentine opinion, the case where the Tennessee Supreme Court adopted modified comparative fault.

All in all, most would say that the comparative fault scheme in Tennessee improved the quality of the civil justice in Tennessee. I agree. For the most part, the Tennessee Supreme Court has done a fine job developing the common law in this important field.

There is one notable exception, although it is not entirely the Tennessee Supreme Court's fault.

Our Legislature has granted certain people and corporations privileged status in the law. Those special privileges have existed for decades, and the current General Assembly seems hell-bound to not only protect those that exist but expand them to others who have the power to seek and obtain them.

What am I talking about? First, governmental immunity. Governmental immunity includes damage caps, although they are not typically labeled as such. But, in my opinion, if the financial obligation for the harm you cause is statutorily limited you enjoy a type of immunity. The notion that our governments - federal, state, and local - are not fully responsible for the harm they negligently causes its citizens is an outrage.

Second, the immunity given to those special groups who benefit from statutes of repose. Once again, some cringe when I label this as an immunity, but the fact of the matter is that statutes of repose are yet another way that people avoid responsible for harm they cause. Tennessee has many of these statutes, the most offensive of which is the four-year statute of repose protecting engineers, architects, and contractors. These statutes extinguish liability because of the mere passage of time, and they are wrong.

The Tennessee Supreme Court was well aware of these laws when it adopted a pure several liability system. They did so, in dicta, in McIntyre. They had the opportunity to fix that mistake in Dotson v. Blake, 29 S.W.3d 26 (Tenn. 2000) and Carroll v. Whitney, 29 S.W.3d 14 (Tenn. 2000). Specifically, the Court had the opportunity to adopt a modified joint and several liability system that would have spread the cost of immunity of any type on all of those who benefit from the grant of immunity. Instead, it chose to stick with several liability, and place all of the burden of a grant of immunity on the injured plaintiff.

What do I mean? Take for example the grant of immunity to a local government for negligent inspection. There are many circumstances under which a local government is required to inspect property, but the law grants that governmental entity immunity from doing a sloppy inspection. Thus, if a building inspector negligently okays the electrical system in a new house and issues a certificate of occupancy, but an electrical fire consumes the house two days later and a family perishes, the government has no liability.

Now, the contractor can still be sued, but it can ask for fault to be assigned to the sloppy governmental inspector even though the plaintiff can not sue the government or the inspector. Is that fair? I mean really, is that fair?

I think not, but consider this: the unfairness is heightened because of several liability.

Let me explain. The alleged purpose behind the grant of immunity to governments which conduct negligent inspections is that expecting government to do their job correctly would increase costs to taxpayers. Thus, the argument goes, we all pay lower taxes because governments are not responsible for their actions.

Note the 'we all pay lower taxes" phrase in the preceding paragraph. The negligent contractor pays lower taxes, too, not just the now deceased family. But the contractor not only gets the benefit of paying lower taxes. It also gets the opportunity to reduce its fault by blaming someone the plaintiffs cannot sue in the event its negligence combines with the government's negligence to harm another.

Thus, the purported benefit of immunity flows to all, but all of the costs of immunity are borne by the injured and the dead.

And that is wrong. Dead wrong.

If we are going to grant privileged status (immunity of any type) to those with sufficient wealth or influence to obtain it, the cost of that immunity should be born pro rata by all those assessed with fault in a given incident. It should not be thrust solely upon the dead and injured. The opportunity to fix this problem is what the Tennessee Supreme Court lost when it issued Dotson and Carroll in 2000.

Looking at it now, perhaps it would have made a difference for only a limited period of time anyway. There are those in the Republican party who not only want to abolish the few, limited situations where joint and several liability applies but also eliminate vicarious liability. (Can you believe that - vicarious liability is on the chopping block?) So, if the Court had done what I believe it should have done it undoubtedly would be repealed by our new General Assembly.

The last 20 years have been a fascinating time to be a tort lawyer in Tennessee. Our Court is to be congratulated for having the courage to abolish contributory negligence as an affirmative defense, and for a great many other comparative fault and tort decisions that have advanced the cause of civil justice in Tennessee.

Article on T.C.A. Section 20-1-119 and the Mills Decision

John Day — Wed, 02 May 2012 06:13:38 -0600

T.C.A. Section 20-1-119 is one of the most important statutes for those of us who practice personal injury law in Tennessee, and the recent Mills v. Fulmarque opinion issued by the Tennessee Supreme Court has changed the way many people thought about this statute.

Subject to several important limitations, the purpose of section 20-1-119 is to provide plaintiffs with an opportunity to add additional defendants to a case in which comparative fault is an issue, notwithstanding the expiration of the statute of limitations. The Mills court held that section 20-1-119 provides a ninety-day window in which a plaintiff may name a new non-party as a defendant only if the defendant alleging comparative fault against the new non-party was sued within the statute of limitations applicable to the plaintiff’s cause of action.

The Tennessee Bar Association has published an article I wrote on the statute and the MIlls opinion as the cover story for the May 2012 edition of the Tennessee Bar Journal.

My thoughts about the impact of Mills are summarized in the conclusion to the article:

At the end of the day, Mills is not a catastrophic development in Tennessee tort law. Rather, it is just another decision that places a burden on plaintiff’s counsel to develop a strategy and employ tactics to attempt to avoid the risk of an empty chair at trial. The biggest hazard faced by plaintiffs occurs when the wrongdoers have a business or insurance coverage reason to collude with one another to create an empty chair.

I hope that this article will be a help to Tennessee lawyers who have questions with the statute. Tort lawyers will find additional guidance on the entire field of Tennessee comparative fault law in a book I wrote 15 years ago with Donald Capparella. John Wood was added as an additional author in a later edition. Tennessee Law of Comparative Fault is available for purchase from Thomson Reuters.

Pit Bulls Declared Inherently Dangerous in Maryland

John Day — Sun, 29 Apr 2012 18:42:50 -0600

Tennessee personal injury lawyers will read with interest this opinion from the Maryland Court of Appeals that declares that pit bulls are inherently dangerous and thus are not subject to the "first-bite" rule.

In Tracey v. Solesky, No. 53 (MD. Ct. of App. Apr. 26, 2012) the dog bite arose from "an attack by a pit bull named Clifford. Notwithstanding his relatively benign name, Clifford possessed the aggressive and vicious characteristics of both Trouble and Rampage."

The Court examined the history of pit bulls and cited to various sources to document the dangerous propensities of these animals. After a careful, thorough examination of the law and public policy, the Court concluded as follows:

We hold that upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bull or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises. [Footnote omitted.]

The Court expressly refused to consider whether the same rule would apply to another dangerous breed, Rottweilers.

The Court explained the change in the law with this footnote:

In this case, we are modifying one of the elements that must be proven in cases involving pit bull attacks from knowledge that a particular dog is dangerous to knowledge that the particular dog involved is a pit bull. If it is a pit bull the danger is inherent in that particular breed of dog and the knowledge element of scienter is met by knowledge that the dog is of that breed.

I agree wholeheartedly with this opinion, but note that it could have unintended consequences. First, to the extent that homeowner's insurance companies will still insure homeowners who have these dogs, my guess is that there will be a blanket exclusion of these dogs from homeowners coverage in the future. This will leave injured parties to look only to the assets of the dog owners and this will mean that many pit bull victims will be left without compensation.

Second, state and local governments should work to ban people from owning pit bulls unless they prove proof of insurance or other evidence financial responsibility. These dogs are inherently dangerous, and any person who is fool enough to have one should be required to demonstrate that they will be able to bear the financial consequences of their actions.

Medical Malpractice Paid Claims Continue to Drop

John Day — Fri, 27 Apr 2012 06:04:45 -0600

The National Practioner Data Bank, the entity that gathers data about medical malpractice claims, reports that paid medical malpractice claims continue to drop.

In 2001, the total number of paid claims was 20,319. In 2010, the number had dropped to 13,277. Now, a new report released by Kaiser citing data from the NPDB indicates that paid claims for 2011 totaled 9497.

(The NPDB data for 2001 through 2010 is set forth in Appendix D, Table 1.)

This data is consistent with my experience in Tennessee. The passage of various laws have made medical malpractice cases less attractive for patients and their lawyers to pursue, and the jury pool has been impacted by decades of misinformation about the civil justice system in general and medical malpractice cases in particular.

Once again, recall that as many as 98,000 people die in our nation's hospitals each year as a result of medical malpractice. Undoubtedly, many more are injured. The fact that less than 10,000 of those people receive compensation for injury or death arising from medical malpractice tells us that the health industry plan to avoid accountability for errors is working all too well.

"1-800-Ask-Gary" Lawyer Referral Network

John Day — Thu, 26 Apr 2012 13:22:09 -0600

"1-800-Ask-Gary" is a medical and legal referral service in Florida founded by Sarasota chiropractor Gary Kompothecras. If you have been to Central Florida you have seen their billboards, television ads and radio ads. Television ad costs exceed $12M per year.

Business must be good - last June Kompothecras paid a little more than $1 million for a three-year deal to put his service’s name on the amphitheater in Tampa. And he built a home of almost 30,000 square feet.

However, 1-800-Ask-Gary has created more than a little controversy. The referral business sends people to some 40 clinics operated by Kompothecras. Lawyers pay to join the referral network and get cases from the referral service.

The Florida Bar thinks that the referral system skirts the rules on lawyer advertising. And, back in November of last year Bloomberg News reported that the company was undergoing investigation for fraud by Florida's Division of Insurance Fraud and that the FBI was also investigation his company, Physician's Group.

Bloomberg reported that

State investigators are trying to determine whether clinics or lawyers in the networks make unlawful payments for referrals and whether patients are being treated for non-existent injuries, Smith recently told the Florida bar association. The FBI wants to know whether lawyers are directing treatment based on how much insurance coverage patients have, according to people familiar with the matter. Only licensed medical practitioners are permitted to decide treatment.

Lawyers outside the 1-800-Ask-Gary Network complain about that the ads are grabbing cases and steering them to lawyers who use the medical offices to drive up settlements that work to the primary benefit of the chiropractors.

The referral network concept has expanded, and now includes companies such as "411 Pain." 411 Pain is a business that sells off territories, like franchises, to medical clinics. When an accident victim calls the 411 Pain lawyer referral service, that call essentially goes to a pain clinic hotline.

Now, a Florida lawyer is fighting back. He has registered a website with the domain name "1800askgarysucks.com" and recently won a fight to keep the name. The lawyer persuaded an arbitrator that he was not using the site for a commercial purpose but instead was exercising his right of free speech

In Middle Tennessee we have certain medical clinics that are calling accident victims. The callers tell the accident victim that they need a lawyer - and then (I assume) refer the victim to a lawyer. I think that if a lawyer is participating in this effort he or she is violating of ethics rules, which prohibit solicitation of clients and contacting potential clients within 30 days of an accident. One cannot do indirectly what he or she cannot do directly.

Tennessee Court Waives Compliance With "Contiguous State" Rule for Expert Witness in Medical Malpractice Case

John Day — Thu, 26 Apr 2012 07:40:01 -0600

Tennessee has a goofy rule concerning expert witnesses that, to my knowledge and belief, exists in no other state.

Tenn. Code Ann. § 29-26-115(b) requires any expert witness in a medical malpractice state to practice in Tennessee or a border state unless the trial court “determines that the appropriate witnesses otherwise would not be available.”

The alleged purpose of the contiguous state rule is to increase the likelihood that the witness will know the applicable standard of care. The actual result of this rule is to make it more difficult to find expert witnesses, particularly in specialty medical areas or when the defendant is well-known.

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012), Plaintiff moved for waiver of the contiguous state rule supported by an affidavit from Plaintiffs’ counsel. The affidavit explained that Plaintiff originally had an expert, but the expert developed health concerns that required him to decline to testify. Plaintiffs’ counsel then spoke with more than a dozen experts from Tennessee and border states, all of whom stated that Plaintiff had a meritorious case but they would not testify for fear of retaliation by

Defendant Doctor’s father, a prominent physician in the area. The trial court granted Plaintiff ’s motion.

Defendant contested the waiver, asserting that Plaintiff ’s difficulty in obtaining an expert from Tennessee or a border state was akin to a patient unable to find a testifying expert because no malpractice occurred. The parties and the Court of Appeals looked to Rose v.

H.C.A. Health Servs. of Tenn., 947 S.W.2d 144 (Tenn. Ct. App. 1996) for guidance:

In Rose v. H.C.A. Health Servs., the plaintiffs searched unsuccessfully in Tennessee and bordering states for an expert in hospital risk management and quality assurance. Plaintiffs’ counsel submitted an affidavit stating that health care professionals in these areas would talk to him only if they were not identified. The affidavit expressed counsel’s belief that the size of defendant H.C.A. would make it difficult to find a witness in Tennessee or a contiguous state. The plaintiffs asked the trial court to waive the contiguous state requirement, and this request was denied. The plaintiffs appealed. The appellate court found no abuse of the trial court’s discretion, holding that the difficulties described by plaintiffs’ counsel in that case were “generalized and unspecific,” and reflected “only a cursory effort to find an appropriate expert.”Additionally, the plaintiffs’ counsel cited only a conversation with a single hospital administration in support of his assertion that the large size of the defendant corporation would make it difficult to find an expert without a conflict of interest. [Citations omitted.]

The Court of Appeals distinguished Rose because the appellate court in Rose merely affirmed a trial court’s denial of the waiver request under the circumstances; the Rose Court did not state that the circumstances mandated denial of the waiver request. In this case, the Court of Appeals

found the evidence submitted by Plaintiff ’s counsel sufficient to make waiver by the trial court “within the range of acceptable alternatives,” and therefore affirmed the trial court’s decision.

Plaintiff's counsel put in the extra effort that made a record to save the case. This effort should not be necessary and the contiguous state rule should be abolished. However, given the current composition of the Tennessee Legislature, that is not going to happen and Tennessee lawyers would be wise to follow the example set forth by the lawyer for the plaintiff in this case.

Tennessee Court Discusses Whether Expert is Qualified to Speak to Defendant's Standard of Care Under Locality Rule

John Day — Wed, 25 Apr 2012 07:57:34 -0600

Tennessee law requires that the plaintiff present expert proof that the defendant violated the standard of care applicable in the community in which the care was given at the time the care was given. Proof of the standard can come from an otherwise qualified expert who knows the standard of care in that community or in a similar community. This rule is codified in Tenn. Code Ann. § 29-26-115(a).

In Marsha McDonald v. Paul F. Shea, M.D. and Shea Ear Clinic, No. W2010-02317-COA-R3-CV (Tenn. Ct. App. February 16, 2012), the Court of Appeals engaged in a lengthy discussion of whether Plaintiff ’s expert was qualified to testify under Tenn. Code Ann. § 29-26-115(a). The court’s reasoning was guided by the recent Tennessee Supreme Court case of Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). In Shipley, the Supreme Court rejected the notion that an expert must have personal, first-hand knowledge of the standard of care by actually practicing in a community. The Supreme Court also held that “expert medical testimony regarding a broader regional standard or a national standard should not be barred, but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.”

These two holdings in Shipley gutted the majority of Defendants’ objections to the competency of Plaintiff ’s expert in this case.

The Court of Appeals then reviewed the testimony of Plaintiff ’s expert relied upon to establish that Los Angeles, where Plaintiff ’s expert practices, is similar to Memphis, where Defendant Doctor practices. Here is the testimony from the expert:

Since I was not asked to do so during my deposition, I am providing such a comparison now. The Los Angeles and Memphis medical communities, though somewhat different in scale because of the difference in population, are nevertheless similar communities. They are both homes to university-based medical centers and university-based medical training programs. They both have community and specialty hospitals. They both offer a large number of medical specialties, including otology. Adjusting for the difference in population, Memphis and Los Angeles also have a comparable number of health care facilities and beds. In summary, there is really no appreciable difference in the medical communities of Memphis and Los Angeles. At a minimum, they are similar communities. The medical and physiological considerations involved in the determination of whether to use transtympanic perfusion therapy on a patient, and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure, are not influenced any geographic differences between the Memphis and Shelby County, Tennessee community or the Los Angeles, California community. Physicians practicing otology in both of these communities have access to the same medical information concerning transtympanic perfusion therapy and whether to use Gentamycin or Streptomycin as the medication of choice in such a procedure. Further, the diagnosis of Ménière’s does not change from community to community. The diagnostic criteria are well understood within the specialties and do not change based on geographic location. All of this is true no matter the specialty nor [sic] location, but it is particularly true in sophisticated medical communities such as Los Angeles and Memphis. For consideration of all the issues that pertain to this case, it is my personal and medical belief that Los Angeles and Memphis are similar medical communities. This is not a situation where a community is impaired in its ability to deliver services because of lack of financial commitment, resources, information, or ability to provide services. In every way a patient presenting such as Marsha McDonald did to the Shea Clinic in July of 2004, should be subject to the same standards of care whether in Los Angeles, Memphis, or many other similar communities. Having pointed out the many similarities between the Los Angeles and Memphis medical communities, I can think of absolutely no differences between them for the purposes of this case other than the proportionally commensurate larger number of doctors and nurses in Los Angeles.

The Court of Appeals rejected Defendants’ argument that Los Angeles and Memphis are dissimilar per se because of the difference in population size, regardless of the testimony by Plaintiff ’s expert. The Court of Appeals acknowledged the trial court’s role as a gatekeeper, assuring the expert meets the minimum competency criteria and then letting the opposing party challenge the expert’s qualifications and testimony on cross-examination.

The Shipley opinion did a fine job of elevating substance over form in the preparation and trial of health care liability actions in Tennessee.

Note: some of you might ask why a doctor from California was permitted to testify in Tennessee, given the fact that ordinarily such experts must come from Tennessee or a contiguous state. This portion of the opinion will be addressed in the next post.

ALEC Exposed

John Day — Tue, 24 Apr 2012 10:24:28 -0600

The Pop Tort has done a nice job collecting information about Americans Legislative Exchange Council (ALEC), the corporate, right-wing group that sponsors a terrible array of legislation that has found its way to the Tennessee General Assembly.

Read and learn about the dirty underside of our poliltical process.

Is There a Limit on Damages Recoverable in Tennessee Personal Injury and Wrongful Death Cases?

John Day — Mon, 23 Apr 2012 17:04:12 -0600

Tennesse law limits damages that may be recovered in personal injury and wrongful death cases. The limits apply only to cases that arise from events that occur on or after October 1, 2011.

Medical expense and lost wages claims are not limited. However, damages for pain, suffering, disfigurement, disability, loss of enjoyment of life and loss of consortium are limited to $750,000 unless one of the following apply to the case:

there injured person was rendered paraplegic or quadraplegic because of a spinal cord injury in the wreck;
the injured person had extensive three degree burns;
the injured person had two hands, two feet or one of each amputed in the wreck; or
in wrongful death cases, the decedent is survived by a minor child and had custody of or visitation rights with the child.

If one of the exceptions apply, the damage limit is increased to $1,000,000.

Damage limits do not apply when the wrongdoer was drunk or in certain other limited circumstances.

For injuries and deaths in accidents before October 1, 2011 the jury is permitted to determine the damages and there are no artifical limits. The Tennessee business community persuaded the Legislature to limit the power of juries during the 2011 legislative session.

The applicable statute is TCA Sec. 29-39-102.

Judgments Arising From Intentional Torts Are Not Dischargeable In Bankruptcy

John Day — Mon, 23 Apr 2012 07:39:44 -0600

You cannot try to murder your ex-wife and then avoid a judgment against you for compensatory or punitive damages by filing bankruptcy.

The Court of Appeals for the Seventh Circuit rejected the effort of David Larsen to use the bankruptcy system to avoid his financial obligation to his former wife. Larsen tried to kill Teri Jendusa-Nicolai and, although his effort was unsuccessful, she suffered a miscarriage and the amputation of all of her toes. The toes were amputated secondary to frostbite - the jerk beat her with a baseball bat and left her in a garbage can filed with snow, secreting the can in an unheated storage facility.

A civil suit was filed, resulting in a judgment of $3.4 million for her and $300,000 for her (then) husband and daughters for loss of consortium. Larsen then filed a Chapter 7 proceeding seeking to discharge the judgment debts.

The 7th Circuit affirmed the decision of the lower courts, holding that the debts were not dischargeable because they were debts “for willful and malicious injury by the debtor to another entity or to the property of another entity” within the meaning of 11 U.S.C. § 523(a)(6).

For a debt to be nondischargeable under this provision, a deliberate or intentional injury is required, not merely a deliberate or intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 61-62 (1998).

Larsen attempted to argue that he did not intend to cause the specific injuries suffered by his ex-wife - such as the loss of her toes. The Court quickly rejected this argument, holding that "obviously he intended to injure her—he was convicted of attempted murder, after all—and the destruction of her toes and the miscarriage were foreseeable consequences of the intent ional torts that gave rise to the debt he seeks to discharge."

Likewise, the debt arising from the judgment for $1.5 million in punitive damages was not dischargeable because it was " a debt consequent upon a willful and malicious injury."

Finally, Larsen argued that he should not be liable for the loss of consortium damages because he did not intend to injury his ex-wife's husband or her children. That argument too was rejected, the Court holding that these losses arose from his malicious conduct. The Court explained that the Bankruptcy Code exists in part to help the "honest but unfortunate debtor," and that Larsen did not fall within that category.

This opinion serves as a good reminder of the law on this subject and, in fact, it is now the only opinion in our jurisprudence that addresses the dischargeability of loss of consortium judgments in such circumstances.

The case is Jendus-Nicolai v. Larsen, No. 11-1256 (7th Cir. April 18, 2012).

Jury Instruction Social Networking

John Day — Sat, 21 Apr 2012 10:00:21 -0600

Social networking by jurors can result in a new trial, creating increased expense for the parties.

The American College of Trial Lawyer has issued a brief report on this issue, and has proposed several instructions to prospective and empaneled jurors.

For example, ACTL recommends that this language be included on summonses to prospective jurors:

The court understands that you may be unfamiliar with the court system, and that you
may have many questions about what to expect from your jury service. In order to assist you in answering some common questions, we have [prepared the enclosed pamphlet] [created a special website], which you should feel free to review before you report to court. If you have questions that are not answered, you may bring them to court with you on the day or your service, or you may call [CONTACT PERSON].

However, in order to assist the court in providing the litigants with a fair trial, it is important that you refrain from conducting any research which might reveal any information about any case pending before the court, or any of the parties involved in any case. Therefore, you should avoid any attempts to learn which cases may be called for trial during your jury service, or anything about the parties, lawyers or issues involved in those cases. Even research on sites such as Google, Bing, Yahoo, Wikipedia, Facebook or blogs, which may seem completely harmless, may lead you to
information which is incomplete, inaccurate, or otherwise inappropriate for your consideration as a prospective juror. The fair resolution of disputes in our system requires that jurors make decisions based on information presented by the parties at trial, rather than on information that has not been subjected to scrutiny for reliability and relevance.

The ACTL suggested instructions will be of benefit to those who practice in jurisdictions that do not have pattern jury instructions on the subject. Tennessee has an instruction for empaneled jurors serving in state court proceedings .

Punitive Damages in Automobile Accidents Involving Reckless Driving in Tennessee

John Day — Fri, 20 Apr 2012 07:15:01 -0600

Tennessee law permits the recovery of punitive damages when a defendant has engaged in reckless conduct. Because the standard for criminally negligent homicide mirrors the standard for recklessness necessary to recover punitive damages, the Tennessee Court of Criminal Appeals’ affirmation of the guilty verdict against a criminal defendant in a recent case could be pertinent to a punitive damages claim in a personal injury or wrongful death case.

In State of Tennessee v. Christopher Vigil, No. E2011-00259-CCAR3- CD (Tenn. Crim. App. February 9, 2012), the Court summarized the evidence supporting the verdict:

Leading up to the incident, the proof showed that Appellant and the victim had a rather torrid relationship. The victim was staying with a friend because she had been arguing with Appellant. The two were seen arguing on the day of the offense and at least one witness saw Appellant swipe his open hand toward the victim, causing
her to react. The victim was seen at least twice with her foot dangling out of the passenger door of the car while Appellant was driving. The victim was screaming and flailing about in the car as it was driving “very fast” down the road. Appellant did not stop the car in order for the victim to exit safely. Appellant later admitted that he did not pull over and assist the victim when she was injured. From these facts, a jury could have concluded that Appellant engaged in conduct that he knew, or should have known, would have created a substantial and unjustifiable risk to the victim and constituted a gross deviation from the standard of care of an ordinary person under those circumstances.

It is unclear whether the heated relationship between the victim and Defendant was a critical part of the Court of Criminal Appeals’ ruling. However, driving fast and erratic while a passenger is trying to get out of the vehicle should be enough to establish recklessness and justify the imposition of punitive damages.

Tennessee Construction Statute of Repose Not Tolled For Minors

John Day — Wed, 18 Apr 2012 07:17:18 -0600

The Western Section of the Tennessee Court of Appeals has held that the construction statute of repose is not tolled for minors. By five years after a home or building is substantially completed, all bets are off. Even if the roof collapses on toddler in a crib, the contractors, architects, etc. are immune from suit.

Plaintiffs sued for injuries to a minor when a sink shattered. The trial court granted Defendants, the general contractor who constructed the building and the plumbing subcontractor who installed the sink, summary judgment based on the statute of repose for improvements to real

property. A statute of repose grants immunity to its beneficiaries because of the mere passage of time from some event. Practically speaking, it means that a person can lose his or her right to receive compensation for negligent acts or events before he or she is even injured,

Tenn. Code Ann. § 28-3-202 et seq. sets out a statute of repose for injuries suffered because of real property improvements:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.

Under Tenn. Code Ann. § 28-3-203, the statute of repose is extended for one year from the date of injury for anyone injured during the fourth year after substantial completion.

The Court of Appeals first concluded that the construction statute of repose is not tolled for minority

or legal disability. Based on Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2006), the Court of Appeals decided that the legal disability tolling statute, Tenn. Code Ann. 28-1- 106, does not apply to statutes of repose. Quoting Penley v. Honda Motor Co., Ltd., 31 S.W.3d 181, 184-85 (Tenn. 2000), the Court of Appeals stated “[i]t appears that when the General Assembly has desired that exceptions apply to a statute of repose . . . the exception is either found with the language of the statute itself, or in another part of the code specifically referencing the particular statute of repose.”

The Court of Appeals next turned to Plaintiffs’ contention that, because Defendants had never secured necessary permits and inspections that would have allowed the City to order any construction defects remedied, the project had not been “substantially completed” as required by the construction statute of repose. Plaintiffs also argued that, at a minimum, Defendants’ failure to obtain permits and inspections created a genuine issue of material fact as to whether the project was substantially completed, precluding summary judgment on the issue. The Court of Appeals rejected this argument as well, finding that evidence that the sink at issue had been in use and no

more work done on it since before the repose period was sufficient.

The case is Christopher J. Etheridge, Selena A. v. YMCA and West Tennessee, No. W2011-00495-COA-R3-CV (Tenn. Ct. App. January 27, 2012).

Statutes of repose represent a public policy with which I disagree. The idea that someone could lose a right to sue for the consequences of the negligence of another simply because the injury did not occur quickly enough after a given event is just plain wrong. This law harmed another of our potential clients this week and we were forced to turn her away on a case that otherwise was of clear merit.

Will A Special Needs Trust Trump An ERISA Subrogation Interest?

John Day — Mon, 16 Apr 2012 06:31:07 -0600

The Court of Appeals for the Fifth Circuit has ruled that the assets held in a special needs trust created out of the proceeds of a personal injury settlement are not available to satisfy an ERISA subrogation interest.

The Court held that the injured plaintiff never had possession or control over the money. The Court also determined that the trust and trustee could not be sued because the only asset in the trust was the right to future periodic payments in an annuity held by another.

The case is ACS Recovery Services, Inc. v. Griffin, No. 11-20266 (5th Cir. April 2, 2012). Footnote 4 of the opinion distinguishes a decision from the 8th Circuit involving a special needs trust.

Will this work in the 6th Circuit? Apparently there is no case on point. However, this opinion does a nice job reviewing the USSC opinions on the subrogation issue when ERISA controls and offers a step-by-step guide on how to avoid a subrogation interest in the 5th Circuit.

Argument of Validity of Caps in Medical Malpractice Cases in Florida

John Day — Fri, 13 Apr 2012 12:08:25 -0600

Oral arguments were held a couple months ago on the validity of caps on damages under tort reform measures in medical malpractice cases in Florida. The arguments on now available on the Web.

Tennessee Senate Rejects Changes to Law That Would Have Essentially Eliminated Punitive Damage Recoveries

John Day — Thu, 12 Apr 2012 09:08:16 -0600

The Senate Judiciary Committee has just voted to reject a bill that would have allowed corporations and other employers to escape responsibility for punitive damages based on the reckless conduct of their employees.

SB2637 by Republican Senator Brian Kelsey (House version by Republican Rep. Vance Dennis), Tennessee would have held employers responsible for punitive damages only if (a) the reckless act was committed by someone employed in a management capacity; (b) the employer recklessly hired, retained, supervised or trained the reckless employee; or (c) the employer authorized, ratified or approved the reckless act or omission with knowledge or conscious disregard for the loss or injury.

The Bill defined "someone employed in a management capacity" as a management-level employee with the stature and authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer's business and where the alleged act or omission warranting punitive damages by such management-level employee was directly within the scope of such authority.

The legislation had passed the House Judiciary Committee.

The legislation would have virtually eliminated the collectability of punitive damage awards in cases involving careless truck drivers, nursing home employees, etc. Although punitive damage awards are very rare, the threat the punitive damages (even though the 2011 law places severe limits on the amount of those damages) encourages corporations and other employers to act responsibly.

The defeat of this Bill is a major victory for Tennessee consumers.