Damages

June 21, 2013

Tennessee General Assembly Fixes One Small Problem With The Tort Reform Legislation

Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis" for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2), This was a disaster waiting to happen. Why?

Here is an example. Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident. She will never work again and she has a significant future medical expenses over her lifetime. Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy. There is also a dispute over the inflation rate and the discount rate.

May 23, 2013

Major Changes to Tennessee Wrongful Death Law – Death of a Spouse

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

Under the law of wrongful death in Tennessee, the spouse of the decedent typically has the principle right to pursue a wrongful death claim.

However, from time to time cases have arisen where the marriage effectively but not legally ended before the death of one spouse, and squabbles arose over who controlled the wrongful death action and whether wrongful death proceeds were recoverable.

The Tennessee General Assembly has weighed in on the controversy. First, Tenn. Code. Ann. Sec. 20-5-110 has been amended to provide that the right to bring a wrongful death case or collect any proceeds is waived if the surviving spouse abandoned the deceased spouse as described in Tenn. Code Ann. Sec. 36-4-101(a)(13) or otherwise willfully withdrawn from the decedent for a period of two (2) years. Section (c) of the statute sets forth more details on the issue, and includes a mechanism for bringing the issue to a head.

September 6, 2012

Distribution Of Net Wrongful Death Proceeds in Tennessee

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

As regular readers know, the Tennessee Bar Association has published a regular column in the Tennessee Bar Journal called "Day on Torts" for many years. I enjoy writing for these articles and am thankful for the many calls, letters and emails I have received over the years from my fellow lawyers thanking for me writing them.

The September 2012 edition of the publication includes my latest column, titled "Distribution of Net Proceeds in Tennessee Wrongful Death Cases." The article offers an analysis of Tennessee law on how statutory beneficiaries divide the net proceeds of wrongful death settlements and judgments.

I wrote this column after receipt of many calls from lawyers asking me questions on the subject. I hope that this work helps other lawyers serve their clients in Tennessee wrongful death cases.

March 28, 2012

What Is A Life Worth?

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

The Tennessee General Assembly has now placed arbitrary caps on damages in personal injury and wrongful death cases. And the House of Representatives just passed HR 5, which placed a caps on damages in medical malpractice cases.

But how does the federal government value life when weighing regulatory burden? The New York Times provides us these figures:

EPA – $9.1 million

February 4, 2012

Damages for Death or Serious Injury of a Homemaker

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

We all know that the services provided by homemakers have a substantial value, but this article from Vestopedia puts some numbers on it.

The author notes that "

The life of a homemaker is one that includes an endless amount of demands and to-dos. Depending on the size of the home and family, the position of homemaker can go well beyond the usual nine to five. We examined some of the tasks that a homemaker might do to find out how much his or her services would net as individual professional careers. We only take into consideration tasks which have monetary values and use the lowest value for each calculation.

February 25, 2010

Patient Rights and Health Care Reform

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

Will the President sacrifice the rights of patients injured by medical malpractice to get Republicans to sign-off on a health care bill?

Steven Olsen explains why the President should not in this article titled "Why Shouldn’t Obama Throw Injured Patients Under the Bus to Get Heath Reform? Ask Steven Olsen."

Steven Olsen is a malpractice victim from California. Here is a letter written by the jury foreman after he learned that the jury’s damage award was cut because of California’s cap on damages.

September 17, 2009

Georgia Supreme Court Considers Constitutionality of Damages Cap in Medical Malpractice Cases

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

The Georgia Legislature imposed a cap on noneconomic damages in meritorious medical malpractice cases in 2005. The cap is $350,000. In a case tried in Fulton County several years ago, the jury’s verdict exceeded the cap, and the Georgia Supreme Court is now considering whether the cap is constitutional.

According to a press release from the Georgia Trial Lawyers Association and re-printed on the Atlanta Injury Lawyer Blog

“Betty Nestlehutt was the face of her real estate business,” said Malone. “Her face was so horrifically disfigured that she was no longer able to even leave her house. Photographs of her disfigurement are even too gruesome for public distribution. The damage is permanent. Years later she has to wear layers of special makeup to try to give the appearance of normalcy.”

August 14, 2009

New Tennessee Legislation of Interest to Tort Lawyers – Post 10

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

Post 10 addresses changes to the Personal Rights Protection Act of 1984, codified at TCA Title 47, Chapter 25, Part 11.

Here is a summary of the new law:

Under present law, the Personal Rights Protection Act specifies that an individual is entitled to recover the actual damages suffered as a result of the knowing use or infringement of such individual’s rights and any profits that are attributable to such use or infringement which are not taken into account in computing the actual damages. Profit or lack thereof by the unauthorized use or infringement of an individual’s rights is not a criteria of determining liability.

April 29, 2009

Work Life Expectancy Tables

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

Economists in personal injury cases and wrongful death cases often consider work life expectancy tables in calculating future economic losses.

As explained on this website, "[m]any laypersons (and some experts) assume that [worklife expectancy] is the number of years until the person turns 65, the historic age for full social security retirement. This assumption is incorrect for two basic reasons: many people retire at different ages (usually earlier) and the average person has some breaks in employment (perhaps involuntary) before retirement."

The factors taken into account in determining work life expectancy are age, gender, education and level of work disability.

May 3, 2007

Loss of Services of a Homemaker

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

This report published by Rueters says that if "the typical stay-at-home mother in the United States were paid for her work as a housekeeper, cook and psychologist among other roles, she would earn $138,095 a year."

Is this data that can be reasonably relied upon by an economist in a death or personal injury case?