Articles Posted in Damages

Pre-judgment interest is not the Wicked Witch of the East – it will not die. (Do you remember the unseen WWE? Dorothy parked a house on top of her and ended up with her ruby red slippers – much to the chagrin of WWE’s sister, the Wicked Witch of the West.)

Tennessee does not have a statute that unquestionably permits the award of pre-judgment interest in tort cases, either as a matter of right or of discretion. It is fair to say that after a flurry of activity in the 1990s the issue appeared to be dead – until the Tennessee Supreme Court’s opinion in Hunter v. Ura, 163 S.W.3d 686, 706 (Tenn. 2005). That opinion placed pre-judgment interest on a ventilator, with plaintiffs’ lawyers praying for a full recovery and insurance companies searching desperately for the power cord.

Now, Judge Koch and his colleagues on the Middle Section of the Tennessee Court of Appeals have declared pre-judgment interest dead. How dead? Judge Koch could have cited the medical opinion of the Coroner of the Land of Oz (given to a reasonable degree of coroner certainty) to reflect his views of the viability of pre-judgment interest in Tennessee:

I wrote recently about the decision in Arkansas Dept. of Health and Human Services v. Alhborn, 126 S.Ct. 1752 (2006), the USSC decision which ruled that state Medicaid agencies’ claims for reimbursement out of tort settlements are limited to that portion of any settlement attributable to past medical expenses. The ruling means that the agencies may not lay claim to any portion of a plaintiff’s recovery for lost wages, pain and suffering, permanent disability or other future damages.

Now, ATLA’s Center for Constitutional Litigation has issued a paper titled “Possible Extension of Ahlborn Ruling to Medicare and Guidance to Plaintiffs’ Counsel Regarding the Decision.” The CCL’s view: “We believe that Ahlborn’s logic should control repayment claims by other federal programs, such as those asserted under the Medical Care Recovery Act (“MCRA”) and the Medicare Secondary Payer Act (“MSPA”), despite differences in the language of each statute, because the basic structure of the repayment obligation is the same under all three federal statutes and because all three acts share a common congressional purpose.”

The memo is a six-page receipe for addressing this issue.

Professor Anthony Sebok from the Brooklyn Law School has written an interesting paper on punitive damages.

Here is his abstract of the article:

In this article I argue that the current problem with punitive damages in the United States is not, as is popularly believed, that they are out of control and threatening the orderly function of the tort system. Punitive damages suffer from a different sort of crisis – courts now lack an adequate theory to explain to themselves, lawyers, and litigants the purpose of punitive damages. The argument contains the following steps. First, I illustrate that the dominant rationale in recent years for punitive damages has been efficient deterrence. Second, I argue that the current practice of punitive damages is ill-suited to the achievement of efficient deterrence, which explains why it has been so easy for critics of the tort system to characterize punitive damages as a failed branch of civil litigation. Third, I argue that the remaining significant non-deterrence theories of punitive damages (including the theory developed by the United States Supreme Court in a series of recent decisions) fail to provide an adequate theory of punitive damages. Fourth, I argue that the point of punitive damages can be understood as a form of private retribution, and I use the history of punitive damages in England and the United States as well as the work of the philosopher Jean Hampton to illustrate my point. Fifth, I argue that the theory of punitive damages as “private retribution” – which sounds odd to the modern ear – fits surprisingly well with modern theories of the tort system which view tort law as a system of civil recourse for citizens who have suffered wrongs in private law.

A great new study that could provide for support for determining the value of the life of a homemaker.

A news article says this about the study: “A full-time stay-at-home mother would earn $134,121 a year if paid for all her work, an amount similar to a top U.S. ad executive, a marketing director or a judge, according to a study released on Wednesday. A mother who works outside the home would earn an extra $85,876 annually on top of her actual wages for the work she does at home, according to the study by Waltham, Massachusetts-based compensation experts Salary.com.”

A lawyer was hurt in a wreck and received injuries that limited his work hours. He was a partner is a law firm and continued to receive his regular compensation despite his failure to work and bill the required number of hours. The judge did not permit the defendant to tell the jury that the lawyer received his normal compensation. The jury awarded money for lost of income and defendant appealed.

The California Court of Appeal affirmed, stating “[h]owever criticized, maligned or debatable the application of the collateral source rule may be in this case, it is not within our province to depart from established California law and we decline to do so.” The case includes a nice discussion of the public policy supporting the rule.

The case is Smock v. State of California, (A107532, A108413 Cal. Ct. App. 1st Dis., Div. 3 4/18/06). You can read it here.

The Arizona Court of Appeals has decided that a plaintiff can recover the full value of her medical bills in a tort case and that the amount of the bills should not be reduced by contractual discounts. The case is Lopez v. Safeway Stores, Inc. (2 CA-CV 2005-0057, 2/28/06).

The opinion includes a survey of law from other states on this important issue. Read it here.

Chiropractors get a bad rap and almost certainly an unfair rap. But this type of news stories do not do the profession any good.

Time travel?

Punitive damages in Tennessee are rarer than hen’s teeth. But that doesn’t mean that they shouldn’t be sought in appropriate cases – of course they should.

However, it is not enough to simply say: “what the defendant did was bad, real bad” and hope that you can carry the day. Punitive damage cases are aggressively defended and you need to have a good idea of the way defense counsel is going to approach the case.

Here is an article written by Dale E. Hausman of Washington, D.C. His firm represents insurers in insurance coverage matters. The article is titled “An Insurer’s Defense Against Punitive Damages Claims,” and although it is a little dated on the law it gives you an idea of what you will be facing at trial – and thereafter.